Progressives led by President-elect Joe Biden will soon take over the White House, but at the Supreme Court, liberalism has reached a historically low ebb.
A court that drove liberal social change for decades is now an engine of conservatism. That was evident in a religious liberty dispute over Covid-19 rules last week and is likely to be seen on abortion rights, gun restrictions and possible new Biden regulations, such as to protect the environment and address climate change.
The transformation of America’s highest court has been years in the making and clinched by President Donald Trump’s three appointments, most recently Amy Coney Barrett for the late liberal Ruth Bader Ginsburg.
For the three remaining liberal justices on the nine-member bench, it’s a whole new world of negotiation. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan constitute a low-odds trio with little leverage.
The three justices have shown distinct personal approaches to navigating the changing court. They have different views of when to bargain for half a loaf when a whole is impossible. The question since the confirmation of Barrett is whether much of any loaf will exist for them.
Breyer, 82, and Kagan, 60, have skillfully negotiated in the past with Chief Justice John Roberts, 65, who has tried to keep the court from rushing rightward. (Roberts’ own options are now limited by five solid conservative justices to his right.)
“A dissent is a failure,” Breyer said recently, explaining why he is often ready to give up something to get something.
Sotomayor, 66, is disinclined to compromise and readier to wield a public dissenting opinion calling out her colleagues. Last week, she penned a blunt dissent as the majority rejected New York’s Covid-19 restrictions on churches and synagogues, concluding: “Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”
Sotomayor, whose opinion was joined by Kagan but not Breyer, also pointedly contrasted the majority’s regard for religious groups in the New York dispute with the majority’s 2018 spurning of challenges to Trump’s travel ban on certain majority-Muslim countries. She all but called her colleagues in the majority hypocrites.
Earlier this fall, the liberals dissented together in an Alabama dispute over curbside voting. Writing for the threesome, Sotomayor recounted that, “Howard Porter, Jr., a Black man in his seventies with asthma and Parkinson’s Disease, told the District Court: ‘(S)o many of my (ancestors) even died to vote. And while I don’t mind dying to vote, I think we’re past that – we’re past that time.’ Election officials in at least Montgomery and Jefferson Counties agree. They are ready and willing to help vulnerable voters like Mr. Porter cast their ballots without unnecessarily risking infection from a deadly virus. This Court should not stand in their way.”
The six conservative justices who now dominate are collectively younger than the justices on the left. They are also further to the right than Republican appointees of an earlier era. The most ideologically moderate of the group is Chief Justice Roberts, a 2005 conservative appointed by President George W. Bush.
“We have a court supermajority that is substantially more conservative than the nation as a whole,” said Duke University law professor Neil Siegel. “The court was already our most conservative since the 1930s,” before the appointment of Barrett, who is 48.
“The chief, who was the center, generally speaking, is one of the more conservative chief justices we’ve had,” Siegel added. “And now he’s not going to have the same level of control. Will there be any working center?”
An answer is likely to emerge only after a year or so, when the court has moved past much of the Trump turmoil and Barrett has voted on an array of issues.
Overall, Trump has had an extensive impact on the US judiciary. In addition to filling three of the nine high court seats, he has named 53 appeals court judges. The Brookings Institution’s Russell Wheeler, who monitors judicial trends, said Trump’s appeals court total constitutes 30% of those judgeships, the highest percentage of any president since Jimmy Carter, who served 1977-1981.
At the trial court level, Wheeler said Trump has named 173 judges, 25% of all slots, as of December 1. Senate Majority Leader McConnell, a partner to Trump in judicial selection, promised that no vacancy would be left behind this year. That is the opposite of how McConnell approached the last years of President Barack Obama’s tenure, blocking appointments so that successor Trump came into office with more than 100 total vacancies.
A break from the recent past
In the sweep of Supreme Court history tracing to the 18th century, the justices were not usually at the forefront of progressive social reform.
“A relatively conservative court was the dominant model,” said University of Alabama law professor Tara Leigh Grove. “The important cases of Brown (v. Board of Education) and Loving (v. Virginia) altered the landscape of thinking about the court.”
In those 1954 and 1967 cases, respectively, the court struck down school segregation and a ban on interracial marriage. Other landmarks of the era enhanced privacy and personal liberty, voting rights and criminal justice.
Conservatives criticized these trends – as the domain of legislatures, not courts – and voted to limit them but never fully changed the Supreme Court’s path. That is because a sufficient number of centrists remained on the court, despite the many Republican appointments.
That pattern has ended.
After the retirement of Justice Anthony Kennedy in 2018, Roberts became the median justice based on the relative ideologies of the nine. With the addition of Barrett, on the far right, that will change. Trump appointee Brett Kavanaugh, 55, is likely to sit at the median.
During her confirmation hearings, Barrett cast doubt on landmark rulings from the late 20th century revolution in individual rights. She declined to endorse, for example, the 1965 case of Griswold v. Connecticut that established personal privacy rights for couples who would use contraception and that led to the 1973 Roe v. Wade.
Other conservatives are eager for a new chapter. Justice Samuel Alito, 70, on the bench since 2006, suggested in a fervent speech to the Federalist Society last month that the court should roll back liberal-era milestones, particularly related to religious interests.
In a similar vein, Justice Neil Gorsuch, 53, wrote a solo concurring opinion in last week’s New York religion dispute, criticizing dissenters for “cutting the Constitution loose during a pandemic.”
Kagan and Breyer’s search for compromises
Confronting a bolder right-wing majority after Ginsburg’s death, the liberals necessarily have a weaker hand. Kagan and Breyer will certainly press for narrow decisions, as Roberts has done.
In politically charged controversies vivid in the public eye, such as over the Affordable Care Act, a majority might have an incentive to tamp down tensions and avoid breaking ground. Disputes over religion, alternatively, often elicit deep-seated passions and even before this year, a narrow majority was increasingly ruling for conservative Christian groups and others on the religious right.
In the past, Kagan showed a talent for building cross-ideological coalitions. The 2010 appointee of Obama was a Harvard law school dean between experiences in the Bill Clinton and Obama administrations. She knows faculty politics as well as the hard-core partisan variety.
At an appearance last year at the University of Colorado Boulder, Kagan said, “I definitely do not think compromise is a dirty word.” She regularly tries to reach across divisions on the high court.
Kagan helped steer the court’s decision last June on LGBTQ worker rights and, in 2019, its rejection of the Trump administration’s attempt to add a citizenship question to the 2020 census.
When the LGBTQ decision was announced last June, the Wall Street Journal wrote a disapproving editorial with the headline, “Another Win for the Kagan Court.” That headline hyperbole may not reemerge with the new 6-3 bench.
Breyer also has a background in strategic compromise. The 1994 Clinton appointee served as a Senate committee counsel, before becoming a federal appeals court judge. Breyer rarely passes up the chance to recount the mantra of his former boss Massachusetts Sen. Ted Kennedy about sharing credit to achieve a goal.
Breyer, who before Covid-era isolation walked the halls and dropped in on colleagues, said he believes in talking out differences when possible and accepting a portion of what he wants to attain a satisfactory majority.
“That is why I don’t like dissents. … A dissent is a failure,” he told a video audience of the National Asian Pacific American Bar Association in November.
Breyer’s overall ideology was more moderate than that of fellow Clinton appointee Ginsburg, which likely made it easier for him to work with Roberts to bridge differences.
Sotomayor’s dissents
Sotomayor, on the other hand, rivaled Ginsburg for the most liberal justice. The 2009 Obama appointee has rarely shied from dissents that cast shame on her colleagues in the majority.
One of her strongest this year occurred in February when the court by a 5-4 vote let the Trump administration begin denying immigrants green cards based on their need for even occasional public assistance, such as food stamps.
The administration persuaded the conservative majority to allow enforcement of the new policy, reversing a lower court injunction while the policy was challenged.
“It is hard to say what is more troubling,” Sotomayor, the court’s first Latina justice, wrote, “that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”
In the statement signed alone, she said the court had not been so generous toward death row inmates who asked for emergency stays as execution dates approached. “I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.”
The question for this 2020-2021 session is whether Sotomayor remains mostly alone in heated court battles, or if Kagan and Breyer find the new middle ground a bridge too far. They may, in turn, opt for their own dissents without restraint.