Five takeaways from the Supreme Court’s term

The Supreme Court just completed its first term with former President Trump’s nominees accounting for a third of the justices.

The dozens of cases decided this term, which included landmark rulings on voting rights and the First Amendment, provided the clearest indication yet of the 6-3 conservative court’s increasingly rightward tilt.

Here are five takeaways.

The court is shifting to the right

Many on the right had hoped, and liberals feared, that the 6-3 conservative court would veer sharply to the right.

On Thursday, the final day of the term, those expectations were borne out. With a pair of 6-3 votes that broke along ideological lines, the conservative majority upheld two GOP-backed Arizona voting restrictions and struck down a California law requiring charities to disclose their major donors.

“These rulings represent exactly that sharp-right turn that so many expected,” said Steve Schwinn, a law professor at the University of Illinois at Chicago.

Before Thursday, the justices had charted a more incremental rightward shift.

For instance, in one high-profile case this term the court ruled unanimously for a Catholic charity over same-sex couples seeking adoptions — but only on relatively narrow grounds.

The justices also spared ObamaCare from its third major Republican challenge in roughly a decade, rebuffing the 18 GOP-led states that sought to invalidate a core piece of the 2010 health care law or see it struck down entirely.

Both of those closely watched cases “fizzled out,” Schwinn said.

The justices this term also largely maintained continuity in their approach to search-and-seizure cases. The same goes for their First Amendment jurisprudence in a ruling that favored students’ off-campus speech rights, said Schwinn, noting that those decisions were fairly consistent with the court’s past rulings.

Still some room for consensus

The court managed to reach consensus in several hot-button cases despite its rightward lean.

Some experts attributed this to Chief Justice John Roberts’s judicial minimalism.

“Roberts is a champion of this notion of minimalism, which is that the court should decide cases on the narrowest possible grounds,” David Cole, the national legal director of the American Civil Liberties Union (ACLU), said in a briefing last week. “One of the things about deciding cases on the narrowest possible grounds is it makes it easier for more people to agree who have different worldviews.”

Cole successfully argued the student speech rights case this term, which garnered an 8-1 victory, with Justice Clarence Thomas as the lone dissenter.

Overall, the chief justice’s skill for bridging the ideological divide was still visible this term, some experts said.

“The Chief Justice remains successful at pushing for broader unanimity and narrower opinions than people expect, as Fulton (the LGBT adoption case) and the health care case show,” said Jonathan Adler, a law professor at the Case Western Reserve University School of Law, in an email to The Hill.

Religious rights groups extend winning streak

The court continued its practice of issuing favorable rulings for religious interests.

In the biggest religion case on the docket, Fulton v. Philadelphia, the justices ruled on narrow grounds that Philadelphia had run afoul of religious protections when it cut ties with a Catholic adoption agency over its refusal to work with same-sex couples seeking adoptions.

The three most conservative justices were prepared to go even further, indicating they would have replaced the court’s landmark 1990 decision in Employment Division v. Smith with a more robust approach to religious liberty claims. Three other justices expressed an openness to doing so in the future, signaling that the 30-year-old precedent set by Smith may be on shaky ground.

The court also sided with religious groups in cases that reached the court through emergency applications, on what is sometimes referred to as its “shadow docket,” including clashes between houses of worship and public health restrictions put in place amid the coronavirus pandemic.

Some court watchers have expressed concern that the conservative-majority court has become so sympathetic to religious claims that it has effectively elevated those interests above other constitutional protections.

“What we’ve seen over the course of the COVID-19 pandemic is that the Supreme Court has now created a new constitutional test for the protection of free exercise of religion that is more robust than its standard for basically any other fundamental constitutional right,” said Elizabeth Reiner Platt, director of the Law, Rights, and Religion Project at Columbia University Law School.

Losing streak continues for voting rights

The court delivered another blow to the 1965 Voting Rights Act by ruling that a pair of Arizona voting restrictions did not run afoul of protections for minority groups.

The 6-3 decision came eight years after the court gutted a separate provision of the landmark law that had effectively given the Justice Department veto power over racially suspect changes to voting procedures in places with a history of discrimination.

“The conservative Supreme Court has taken away all the major available tools for going after voting restrictions,” said election law expert Rick Hasen, referring to the string of recent voting rights decisions. “This at a time when some Republican states are passing new restrictive voting laws.”

One Arizona policy that came before the court required provisional ballots cast in the wrong precinct to be discarded. The second measure considered in the case made it illegal for most third parties to deliver ballots for others, a practice critics refer to as “ballot harvesting.”

Thursday’s decision reversed a federal appeals court ruling last year that found the Arizona policies violated the Voting Rights Act because they disproportionately affected minority groups.

The Supreme Court ruling comes as a raft of restrictive GOP-crafted voting limits are introduced and passed across the country, and the high court’s decision could make it harder for Democrats and civil rights groups to win court challenges on the grounds that the new measures are racially discriminatory.

A ‘warm-up act’?

Court watchers are wondering if this term’s trajectory, in which the conservative majority showed a degree of restraint, will give way to an even sharper rightward turn.

Some say it’s simply too soon to tell. Given the generally slow-moving pace of the law, a single term is a tiny sample size, and this latest term may not have reflected the most illuminating of test cases.

“It was not a docket this year with that many cases defined by ideology,” said Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law.

By contrast, he said, the court’s next term could prove more revealing, and more politically influential given the 2022 midterms on the horizon.

The next term, which starts in October, already features cases with greater potential for the kind of explosive ideological clashes that the court managed to side-step several times in its latest term.

“I think this term will be regarded in hindsight as the warm-up act for next year’s docket, which will have abortion, gun rights and maybe affirmative action,” Chemerinsky said.