A Radical Right-Wing Conservative Court

When Brett Kavanaugh and then Amy Coney Barrett ascended to the Supreme Court, the fear among progressives was that the newly powerful 6-3 conservative majority would make a radical shift to the right, reversing the Roe v Wade precedent, restricting the rights of the LGBTQ minority, expanding the rights of religious organizations to discriminate, increasing gun rights (however that might be possible) and so on.  

This first term of the new Court, however, led some observers to believe that it was more moderate than predicted.  But it turns out this was just wishful thinking.  The truth is that the Court will be just as conservative as feared.  

For more than fifty years, Republican appointed justices have leaned conservative, since six of the current justices were appointed by Republican presidents, conservative rulings should be expected.  But there is increasing suggestion that the rulings will be not only conservative but also radically right-wing and more partisan, which, if confirmed by future decisions, will be one more nail in the coffin of democracy.

As Leah Litman and Melissa Murray suggest:

This [2020-21] Supreme Court term was significant mostly because of what the court did not do: The newly constituted 6-3 conservative supermajority did not use every case to openly and dramatically move the law rightward. Rather, in several important cases — including those involving the fate of the Affordable Care Act and the tension between religious liberty and gay rights — the court managed to resolve matters on seemingly narrow grounds and with broad majorities that transcended ideological differences.But to call this term a model of judicial restraint — or even nonpartisanship — would be misleading. This is not a moderate or apolitical court. It is a reliably conservative court that, on occasion, chooses to act incrementally.

Most of the cases that were decided unanimously or along cross-ideological lines did so by not deciding very much.

• One case, for instance, involved a high school student who was kept off the cheerleader squad because of a vulgar, off-campus rant on a weekend.  The Court ruled that the punishment was too severe, which seemed a victory for First Amendment freedom-of-speech.  “Too severe,” however, implies that under the right circumstances (whatever they are), schools are constitutionally permitted to limit students’ speech.  So the Court was able to achieve a broad agreement because it neither prohibited schools from suppressing free off-campus speech nor gave them broad license to do so.  
• In other cases, the Court came to its broad agreement by ruling only about technical matters.  For instance, the court refused to limit the Affordable Care Act by deciding that the plaintiffs didn’t have the standing to sue because they couldn’t show that they were harmed by the provision of the Act in question.

Several little-noticed but extraordinary 6-3 decisions along strict ideological lines seemed to have slipped under the public radar. 

• In one case the Court continued its long-standing anti-union bias by ruling that agriculture growers could keep union organizers off their property.  This was not only a blow to unions but also a much broader decision with potentially catastrophic results.  Liberal Justice Stephen Breyer
  

worried that the court’s ruling would endanger any government intrusion on private property, which he said would include “activities ranging from examination of food products to inspections for compliance with preschool licensing requirements.”

In other words, the ruling may allow private property owners to keep the government from enforcing its constitutionally given regulatory powers, making this ruling a radical and dangerous precedent.

• The Court’s continued its tendency to protect large corporations by limiting class-action suits, ruling that a
  

major credit reporting agency could not be sued for wrongly labeling its customers as possible terrorists or drug traffickers on a Treasury Department watch list. The decision accelerates a trend toward blocking the courthouse doors to persons seeking to enforce federal consumer protection laws.

The Court ruled that only plaintiffs concretely harmed by the credit reporting agency have standing to seek damages in federal court.  It didn’t matter that the agency mislabeled you as a terrorist.  If you, say, missed your flight because you were on the watch list, it would probably not be worth the cost of taking the agency to court.  Class action suits are usually brought to deter future corporate misbehavior not to compensate, say, purchasers who bought a $15 tube of mislabeled toothpaste.  The decision’s potential consequences for holding corporations responsible for their misdeeds are important.

• The Court continued to encourage “dark-money” political contributions in a 6-3 decision along ideological lines, declaring unconstitutional a California law requiring charities to report their donors to state authorities.  Most political action committees are tax-exempt, so-called 527 organizations, which are already required to make donor reports to the federal IRS.  The California law broadens this to state governments.  California’s Attorney General Rob Bonta (D) said
  

Stripping our office of confidential access to donor information — the same information about major donors that charities already provide to the federal government — will make it harder for the state to fight fraud and prevent the misuse of charitable contributions.

Since true conservatives generally favor states’ rights, this decision’s favoring corporate desires over states’ rights is especially ominous.

• The coup-de-grâce, however, came with the Arizona voting-rights decision that I examined in my last post.  Although the federal appeals court determined (as a “finding of fact”) that the Arizona laws did have a discriminatory impact on minorities, the Supreme Court — without challenging the appeals court “finding of fact” — nevertheless allowed the law despite the 15th Amendment and Voting Rights Act unequivocal prohibition of such discriminatory impact.  The Court ruled that as long as the impact was “small in absolute terms,” the state had the right to limit voting rights. This is an ominous sign for future judgments about laws that abridge the voting rights of minorities.  It is clearly a partisan decision.

This Supreme Court cannot now legitimately be called a moderate court.  A conservative court has a legitimate right to make conservative decisions, even overturning precedent.  It does not, however, have the moral right to make partisan or radical decisions.  The Court has revealed its radical right-wing, partisan agenda. 

In order to protect against government extremism, the Framers wrote into the Constitution a series of checks and balances: Each of the three branches of government — executive (presidential), congressional and judicial — can limit the others.  During the Trump administration, the presidential branch and half the legislative branch were controlled by the radical right. The Supreme Court, with a better balance between liberal and conservative judges, was the one bulwark against extremism. 

Given the ages of the conservative judges, the Supreme Court will no longer serve as a protection against right-wing populism for at least a generation.