How conservative is the new Supreme Court majority, really?

·Senior Editor
·7 min read

“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

The Supreme Court began its summer recess last week, bringing an end to a term that served as the first test of its new 6-3 conservative majority, with all three of former President Donald Trump's appointees on the bench.

During Amy Coney Barrett's confirmation to replace liberal Justice Ruth Bader Ginsburg in the final weeks before the 2020 presidential election, Democrats warned — and some Republicans hoped — that a court dominated by conservatives would be primed to radically rewrite the nation’s laws on a host of major issues through a series of partisan decisions. That prediction, for the most part, didn’t come to pass.

Over the course of this past term, the court considered a number of controversial cases, but only a few ended in 6-3 rulings along ideological lines. All nine justices sided with a religious foster care agency that had sued the city of Philadelphia after having its contract canceled because it refused to place children with same-sex couples. In a 7-2 vote, the court rebuffed the latest Republican attempt to kill the Affordable Care Act. The justices were also unanimous in knocking down restrictions on education-related spending for college athletes. Trump’s efforts to challenge the results of the election were rejected by the court, with the only disagreement being among conservative justices.

On the final day of the term, however, the court released a pair of major decisions that did break along strict ideological lines. In a voting rights case, all six conservatives voted to uphold new Arizona restrictions, a ruling that legal analysts say marks a substantial blow to protections in the Voting Rights Act. In the other case, the conservative justices sided with wealthy donors in a decision that could make it much harder to regulate dark money in political campaigns.

Why there’s debate

There’s no doubt that the court’s new makeup, with six justices appointed by Republican presidents, is more conservative than it has been in the past. Where there’s debate is over just how far to the right it has swung.

In the eyes of many legal experts, the court has been far from the purely partisan force that many predicted it would become. They argue that the six conservative justices were hardly a unified voting bloc and instead disagreed vehemently on some important decisions. The court also left some top items on Republicans’ wish list — knocking down Obamacare, rolling back transgender rights, challenging President Biden’s election victory — unfulfilled. Where the court did issue conservative rulings, watchers say, those decisions were consistent with Chief Justice John Roberts’s desire to protect the integrity of the court by favoring incremental changes over major reversals of precedent that would appear to be politically motivated.

Others say that assessment underestimates how significant the court’s rightward shift has been. Some of the 9-0 cases, they argue, were unanimous only so the liberal justices could prevent more sweeping decisions by the conservative majority. Liberal legal analysts say the court was merely biding its time by making smaller decisions during its first term before moving to more aggressively conservative rulings in the coming years. Voting rights advocates argue that the two final party-line rulings, which they say bolster Republican efforts to undermine elections, should be considered the defining decisions of this first term.

What’s next

During the recess between terms, all eyes will be on liberal Justice Stephen Breyer, who is being pressured to retire by some on the left so Biden can replace him while Democrats control the Senate.

The upcoming term, starting in October, is slated to include several blockbuster cases including challenges to abortion rights, gun restrictions and, potentially, affirmative action.

Perspectives

The court is swinging right — the only question is how aggressively

“Seeming inconsistency may have more to do with divisions among the court’s conservatives over how fast to move — not in what direction. Make no mistake, the court is moving in a conservative direction, and the conservative justices are in the driver’s seat.” — Laura Bronner and Elena Mejía, FiveThirtyEight

The rulings weren’t nearly as partisan as many had predicted

“Ideological divisions were not often on display through much of the year. Unusual alliances of justices formed to decide one case and a different lineup would emerge in the next. Many of the court's biggest cases were decided on narrower grounds with broad majorities.” — Mark Sherman and Jessica Gresko, Associated Press

The term was full of major victories for Republicans

“In a term gravid with extraordinarily aggressive arguments made by right-wing lawyers, conservatives and Republicans had an exceptionally good run. They convinced the Court to hobble the Voting Rights Act, to open a new line of attack on donor disclosure laws, to expand property rights, to attack unions, and to rewrite the rules governing when religious objectors are exempt from the law.” — Ian Millhiser, Vox

The court’s ideology has shifted significantly, but that hasn’t manifested in decisions yet

“Conservatives may wish for more from the current Court, but those who condemn it without acknowledging what it took to get a majority of the Court to embrace the originalism that was once widely rejected in our legal culture speak without historical perspective. The new Court has made the judicial activism of living constitutionalism a thing of the past.” — Carrie Campbell Severino, National Review

The center of the court has moved significantly to the right

“I think you have to go back to a year ago when Chief Justice Roberts was riding high. Not only was he the chief justice, but with the retirement of Justice Anthony Kennedy in 2018, Roberts became the controlling vote and the shaper of opinions in many of the court's most pivotal cases. … But now we're in 2021, and there are five justices on the court now even more conservative than he is. So they don't need him. He's not the controlling vote anymore.” — Nina Totenberg, NPR

A critical bloc of justices is wary of making too much change too fast

“It’s going to be a snowball. Every term they’re going to be more comfortable taking more controversial cases. We’ll continue to see the court being more and more comfortable taking these big controversial questions and being shameless about making conservative decisions.” — Legal analyst Jessica Levinson to CBS News

On the most important issue, voting rights, the court has shown it’s deeply conservative

“Single out the cases that really matter, the ones that affect Americans’ ability to govern themselves, and the court doesn’t look so unpredictable or nonpartisan. It looks a lot like what Democrats feared the most when Kavanaugh and Barrett replaced their more liberal predecessors. It looks, in short, like an ultra-conservative Supreme Court that has taken aim at the one right preservative of all other rights.” — Dahlia Lithwick and Mark Joseph Stern, Slate

The court is very conservative, just not Trump-conservative

“This is a conservative court, with Trump’s appointees joining Roberts in the overwhelming number of cases. It is not, however, a court that’s driven by Trump’s appointees in a Trumpian direction.” — Philip Bump, Washington Post

The conservative justices are far from a unified bloc

“Although the court continued to move in a conservative direction and split along the usual ideological lines as it handed down major 6-3 decisions on voting rights and dark money disclosure, divides on the right were also vividly on display in a series of high-profile cases this term.” — Josh Gerstein, Politico

The court has been overly cautious when asked to defend conservative legal principles

“They are rightly concerned about overreaching and appear resolved in each case to decide no more than need be decided. Judicial restraint is essential and admirable, but clarity about the law is necessary for the rule of law to function. As the new justices gain confidence, the court should strike a truer balance.” — David B. Rivkin Jr. and Andrew M. Grossman, Wall Street Journal

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