The U.S. Supreme Court closed out its term on Wednesday after delivering a series of unmistakable wins for Republicans.
The biggest victories often broke down along the court’s partisan lines, showing why one of the most consequential parts of Donald Trump’s presidency remains the appointment of conservative Neil Gorsuch to the bench.
In 5-4 rulings this term, the court upheld Trump’s travel ban for certain Muslim-majority countries and said it was OK for states to aggressively cancel voter registrations. By the same breakdown, it approved Texas’ electoral maps tainted by claims of intentional racial discrimination and struck down a California law requiring pregnancy counseling centers to notify people about the availability of abortion.
The court’s five Republican-appointed justices also voted to make it more difficult for workers to band together to sue their employers for discrimination and dealt a severe blow to public-sector unions by ruling that non-members for whom the labor groups bargain don’t have to pay union fees.
By wider margins, the justices used narrow legal reasoning to back a Colorado baker who refused to make a cake for a gay couple’s wedding. They also passed on opportunities in two cases to set novel limits on excessive partisan gerrymandering, deciding to send it back to the lower courts for further review.
And the court furthered its corporate slant under Chief Justice John Roberts, continuing to deliver some of the most pro-big business decisions in decades, according to an analysis by the Constitutional Accountability Center, a progressive think tank and law firm.
Justice Anthony Kennedy, typically the court’s swing vote in 5-4 rulings, has often been embraced by progressives. Three years ago, he wrote the decision that legalized marriage equality. But this term ― which turned out to be his last, as he announced his retirement on Wednesday ― he sided with the court’s conservative wing in all of the significant cases, including the one involving the baker. Kennedy also notably sided with conservatives on partisan gerrymandering.
For more than a decade, Kennedy had suggested that a constitutional standard to judge partisan gerrymandering might exist, essentially opening the door for challengers to bring one to the high court, Richard Hasen, an election law expert at the University of California-Irvine, noted in Slate. So Kennedy’s part in the decision to kick the matter back to lower courts was surprising to many observers.
“Despite the fact that... Kennedy or... Roberts will vote with the more liberal members of the Supreme Court, this term was a stark reminder that the court is, at its core, a conservative court,” said Elizabeth Wydra, president of the Constitutional Accountability Center.
““Despite the fact that... Kennedy or... Roberts will vote with the more liberal members of the Supreme Court, this term was a stark reminder that the court is, at its core, a conservative court"”
The court’s partisan gerrymandering decision was significant because it signaled the court remains hesitant to touch the issue, even after Republicans in several states blatantly and unabashedly redrew districts after the 2010 census to achieve maximum political advantage for their party. The lawsuits challenging gerrymandering warned that the practice would only get worse during the next round of redistricting, in 2021. The court’s failure to decisively rule on the issue is a de facto win for Republicans, who can continue to get elected under electoral maps that may be unconstitutional, allowing them to pass laws that will have lasting consequences.
While the legal punts on the partisan gerrymandering and the wedding cake case were disappointing for progressives, John Paul Schnapper-Casteras, a Supreme Court litigator, said it was not surprising because the justices often act cautiously in areas of law where they haven’t weighed in substantively before.
In the court’s two other big voting rights cases ― focused on voter purging and racial gerrymandering ― the five conservative justices showed extreme deference to state lawmakers. In the voter purge case, the court said Ohio could continue to purge voters who failed to cast ballots for six years and failed to respond to a mailing from the state, despite concerns the process was discriminatory and an inaccurate way to identify voters who had moved. In the racial gerrymandering case, it said courts had to presume Texas acted “in good faith” when it tried to fix a map blocked by a federal court for being racially discriminatory.
The court “used to protect vigorously the fundamental right to vote,” said Joshua Douglas, a law professor at the University of Kentucky. “These days, however, the court is much more likely to defer to state practices. That means that states have wide leeway to run their elections as they see fit, arming partisan operatives with the ability to shape electoral rules for their benefit.”
The court’s decisions were a stinging reminder of the maneuvering by Senate Majority Leader Mitch McConnell (R-Ky.) in 2016 to block Merrick Garland, then-President Barack Obama’s nominee for the court following the death of Justice Antonin Scalia. Trump, upon taking office, quickly nominated Gorsuch and the GOP-controlled Senate moved swiftly to confirm him, preserving the conservative voting block on the Supreme Court.
Geoffrey Stone, a law professor at the University of Chicago, said that as a result, the court should now be called the “McConnell Court.” Noting that Gorsuch’s appointment was crucial to the “highly partisan and highly ideological” 5-4 decisions this term, he said, “It is, indeed, a sad time for the Supreme Court of the United States,” he wrote.
As the court’s liberal justices found themselves frequently in the minority, they responded with some powerful dissenting opinions. In the Ohio voter purge case, Justice Sonia Sotomayor decried the effects of voter purging on minority voters, and urged those affected by the restrictions to not stand idly by.
In the travel ban case, Justice Ruth Bader Ginsburg joined a scathing opinion by Sotomayor linking the policy to Trump’s anti-Muslim statements and bias.
“Based on the evidence in the record, a reasonable observer would conclude that (Trump’s executive order establishing the ban) was motivated by anti-Muslim animus,” Sotomayor wrote. “The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”
Wyrda said the court’s failure to check the executive branch would damage its credibility and standing with the public.
“Chief Justice Roberts tries very hard in his public speeches to distinguish the court from the elected branches of government as not a political branch,” she said. “The court failing to uphold its institutional role as a check on the executive does make it seem just like another political branch dominated in this case by Republicans than the independent, impartial judiciary.”
This story has been updated with Kennedy’s retirement.