The Supreme Court’s term was full of whimpers. Then it ended with a bang.

 

LEGAL

The Supreme Court’s term was full of whimpers. Then it ended with a bang.

 

Chief justice John Roberts spent months amassing institutional capital with centrist-seeming rulings. This week, he cashed in with dramatic victories for the right.

 

By JOSH GERSTEIN

06/30/2023 08:55 PM EDT

https://www.politico.com/news/2023/06/30/supreme-court-term-end-roberts-conservative-00104511

 

If liberals expected a big course correction from a Supreme Court mired in ethics controversies and rocked by record-low approval ratings, the justices’ final decisions of the term laid that to rest.

 

Moves by Chief Justice John Roberts in the weeks leading up to the grand finale seemed to signal an eagerness on his part to project an air of moderation. In surprising decisions on voting rights, election law and other issues, he aligned with the court’s liberal bloc, perhaps in the hope of showing that the court, dominated by conservatives, isn’t always looking to take a wrecking ball to long-established precedent.

 

But if Roberts amassed some political capital from those decisions, he swiftly spent it on Thursday and Friday. In the three most politically divisive cases of the term, the court issued polarized 6-3 decisions — two of which Roberts wrote himself, and all of which delivered sweeping conservative victories on issues that are high priorities for the right.

 

“The last two days of the term were absolutely cataclysmic and, to the extent people were asleep at the wheel, it’s because he kind of anesthetized them,” said New York University law professor Melissa Murray.

 

Last June, the six-justice conservative majority cemented by former President Donald Trump flexed its muscles for the first time – with Roberts sometimes on the sidelines, as he was when the five other conservatives overturned Roe v. Wade. This term, he seemed intent on regaining some control.

 

Earlier this month, the chief justice broke with his own history in voting-rights cases, taking the helm as the court, in a 5-4 vote, sided with Black voters in a Voting Rights Act case challenging alleged racial gerrymandering. The decision, which drew sharp dissents from the conservative bloc, is expected to help Democrats win several congressional seats in 2024.

 

Then, Roberts again took the pen as the court refused to embrace a radical legal theory that could have given state legislatures far-ranging powers over elections — potentially even the power to nullify disputed elections, much as Trump and his allies tried to do in 2020.

 

In other fractured decisions rebuffing adventurous conservative legal arguments, Roberts voted with the liberals to sustain President Joe Biden’s immigration policy and uphold the Indian Child Welfare Act.

 

These opinions seemed of a piece with the chief justice’s reputation as a pragmatic institutionalist seeking to protect the court amid intense criticism. But some observers warned his moves were mere feints aimed at preserving the veneer of respectability around the court, even as the conservative supermajority’s project to dramatically reshape American law marched on.

 

The unusual alliances and cross-cutting cleavages that marked some of the term’s earlier decisions were nowhere to be found on Thursday and Friday as the court’s highest-profile cases came down on predictable ideological lines.

 

When the smoke cleared, the decades-long use of race to achieve diversity in college admissions was effectively dead, as was Biden’s marquee policy forgiving student debt for tens of millions of Americans. And the high court’s two-decade-plus string of decisions expanding the rights of the LGBTQ community was stopped in its tracks and beaten back by a ruling upholding the right of business owners to refuse service to same-sex couples on free-speech grounds.

 

Some analysts say the idea that the Roberts-backed decisions earlier in the term were truly centrist is misguided because they were actually rejections of radical positions — like the contention that state legislatures should be able to alter any aspect of election rules or even overturn election results without state courts or state constitutions playing any role.

 

“The Roberts court should get zero credit for the idea that the independent state legislature doctrine being rejected is any kind of moderation,” said Fordham law professor Jed Shugerman. “That’s just Overton Window talk,” he added, referring to a strategy that seeks to shift the debate in a particular direction by floating a previously unthinkable possibility and then backing away from it.

 

Shugerman also said some of the maneuvering by Roberts and his colleagues is hard to reconcile, like acknowledging the need to rely on race in litigating Voting Rights Act cases but entirely reproaching the practice in college admissions.

 

“It’s hard to square all of that colorblindness rhetoric from the affirmative action case, while they were at the same time writing a very much, rightly, not-colorblind interpretation of the Voting Rights Act,” Shugerman said. “It’s hard to read those two decisions next to each other.”

 

Some conservative legal experts pointed to the immigration case, in which the court tossed out a challenge to the Biden administration’s priorities for arresting and detaining people living in the country illegally. That decision snubbed both the state of Texas and the 5th Circuit Court of Appeals — both of which have played key roles in recent years to advance legal challenges to policies ranging from immigration to abortion.

 

“Texas and the 5th Circuit didn’t do particularly well at the court this term,” said Jonathan Adler, a law professor at Case Western Reserve University. “At the same time, that doesn’t mean affirmative action is OK or the Biden student loan program is OK.”

 

Roberts’ sensitivities about the court being seen as wantonly overturning precedent were on particular display in the affirmative action case, where his opinion seemed to rule out the use of race in admissions in the way most elite colleges and universities use it these days. Yet, he stopped short of overruling the 2003 precedent that blessed continued use of race as a factor in that arena, Grutter v. Bollinger.

 

That approach might have kept some critics from asserting that the court was again grinding up precedent, but for the fact that both Justice Clarence Thomas, who signed onto Roberts’ ruling, and Justice Sonia Sotomayor, who dissented from it, said the decision did effectively overrule Grutter, despite Roberts’ hedging.

 

One of the challenging aspects of the past year for Roberts has been public criticism of the court by its own members, chiefly by Justice Elena Kagan, who embarked on a speaking tour last year in which she repeatedly accused her Republican-appointed colleagues of reaching decisions that were more grounded in politics and personal preference than in law.

 

That critique resurfaced Friday in the student-debt ruling as Kagan said the GOP-appointed supermajority was exceeding its proper role.

 

At one point, Kagan declared that “a court acting like a court” would have dropped the case on the ground that the six GOP-led states that sued lacked any direct interest in the loan forgiveness program. While the phrase may sound innocuous, it is one Kagan has used on prior occasions to accuse her colleagues of abandoning legal principle and using cases to achieve policy objectives.

 

Roberts devoted the final passage of his majority opinion in the student loan case to rebutting Kagan’s critique, while also airing the kind of discomfort he has publicly expressed about criticism that seems aimed at the court’s legitimacy rather than individual decisions.

 

“It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” Roberts wrote, insisting that the court’s ideological fractures are merely reasonable disagreements about how to apply “traditional tools of judicial decisionmaking.”

 

“It is important that the public not be misled,” he continued, because any suggestion to the contrary “would be harmful to this institution and our country.”

 

One prominent courtwatcher who saw hints that Roberts was trying to moderate the court but was profoundly disappointed by the decisions this week was Biden.

 

Asked Thursday if the court had gone “rogue” and was undermining its own legitimacy, Biden replied: “This is not a normal court.”

 

Biden, who has resisted endorsing major changes to the court, didn’t quite urge defiance of the court’s affirmative action decision — but he came close.

 

“We cannot let this decision be the last word,” the president said. “While the court can render a decision, it cannot change what America stands for.”

 

In an interview later in the day, Biden said he thought the court had gone beyond the precepts even of the conservative Federalist Society by retreating from and overturning precedents. “It’s done more to unravel basic rights and basic decisions than any court in recent history,” he told Nicolle Wallace on MSNBC.

 

However, Biden also said he saw signs that the justices were attuned to the decline in public respect.

 

“I think that some on the court are beginning to realize their legitimacy is being questioned in ways it hadn’t been questioned in the past,” the president said, describing the chief justice as “maybe” in that group.

 

Meanwhile, the ethics firestorm that descended on the court last fall hasn’t abated, despite Roberts’ modest attempts to satisfy the court’s critics. Reports about undisclosed trips taken by Justices Clarence Thomas and Samuel Alito fueled longstanding concerns about the lack of a formal ethics code for the high court and of any enforcement mechanism to police alleged conflicts of interest.

 

“It, too, was a barnburner of a term outside 1 First Street. The press on the court was unrelenting,” Murray noted. “The court was kind of in our faces all year long, even when they weren’t issuing decisions. I’ve got to think John Roberts doesn’t love that.”