US Supreme court continues conservative lurch in recent decisions

Analysts say trust in the US’s highest court is wavering as a conservative supermajority reshapes constitutional law.

Supreme Court
Protesters rally against affirmative action outside of the United States Supreme Court in Washington, DC [Mariam Zuhaib/The Associated Press]

The United States Supreme Court last week ended its term with a series of rapid-fire decisions that provoked outrage and surprise, particularly on the political left.

What was not surprising, analysts told Al Jazeera, is that the court’s decisions skewed towards the right — a reflection of the six-to-three conservative majority that took shape under former President Donald Trump.

In the course of days this past June, the court delivered a wide range of conservative rulings. In one case, it sided with a website designer who refused services to same-sex couples. In another, it ended affirmative action at colleges and universities. It also nixed President Joe Biden’s student loan forgiveness plan, stymying one of the Democrat’s signature policy proposals.

That rightward trend — mixed with recent ethics concerns about justices receiving luxury travel from donors — is unlikely to improve tanking public opinion about the court, according to Lawrence Douglas, a professor of law, jurisprudence and social thought at Amherst College.

“We’ve really seen a pretty dramatic erosion in the respect that the court enjoys among the American people,” Douglas told Al Jazeera. “And I’m not sure that anything that happened in this term is really going to kind of shore up that respect.”

Nevertheless, some less-expected decisions indicate “key lines of division” among the court’s conservative justices, according to Thomas Keck, a professor of political science at Syracuse University.

Keck pointed to one surprise decision — Allen v Milligan — that saw Justices John Roberts and Brett Kavanaugh side with their liberal colleagues to knock down racially gerrymandered voting districts in Alabama. Justice Amy Coney Barrett has also shown a willingness to break ideological lines.

“It’s not that [those three justices] are less conservative, but it’s that they are tempering the sort of conservative-movement demands with other considerations,” Keck told Al Jazeera.

That’s particularly true in the case of Roberts, Keck added. As chief justice, Roberts “clearly wants to be a little more cautious and incremental” to maintain the court’s reputation among the public.

The trio stands in contrast with their fellow conservatives Clarence Thomas, Samuel Alito and Neil Gorsuch, who are “very firmly convinced of the rightness of their views and they’re very impatient to impose those views”, Keck said.

Questions of ‘judicial activism’

To be sure, Keck said, the “dominant theme” of the court’s recent term is that the bench remains staunchly conservative. Over the last two years, the conservative supermajority has overseen “multiple, rapid” shifts in the law that appear “ideologically driven”.

Those shifts were perhaps best exemplified by the June 2022 decision overturning Roe v Wade, the landmark 1973 ruling that created federal protections for abortion.

Another ruling that year upended the federal government’s ability to restrict greenhouse gases. Meanwhile, Bruen v New York threw into question the longstanding ability of state and local authorities to restrict aspects of gun ownership.

Decisions like those, made in quick succession, contributed to declining public opinion and charges of “judicial activism” — the idea that rulings are made based on politics and not legal readings of the US Constitution, Keck explained.

An ABC News/Ipsos poll, conducted between June 30 to July 1, found that 53 percent of respondents believed the justices based their rulings mainly on their political beliefs. That is a spike of 10 percentage points since January 2022.

Biden himself seemed to criticise the court’s partiality. In a speech denouncing the affirmative action ruling, he said the court had “walked away from decades of precedent” by striking down the policy, which had allowed race to be used as a consideration in college admissions.

As he walked out of the room, a reporter asked him if the court had gone rogue. “This is not a normal court,” Biden responded.

“Take a look at how it’s ruled on a number of issues that have been precedent for 50, 60 years sometimes. And that’s what I meant by not normal,” Biden later explained on MSNBC. “Across the board, the vast majority of the American people don’t agree with majority of decisions the court is making.”

While polls consistently indicate a majority of Americans disapprove of the court’s rejection of Roe v Wade, public sentiment has been more mixed about last month’s rulings.

The ABC News/Ipsos poll found a slight majority supported the Supreme Court’s ruling on affirmative action. But public opinion was split for the court’s decision on Biden’s loan plan and the ruling that determined a web designer could deny her services for gay weddings.

Still, Biden’s statements tap into the larger question of whether the Supreme Court should reflect the public’s understanding of their constitutional rights.

“Certainly, it is the case that the court is meant to kind of be above public opinion and certainly is not supposed to be directly swayed by public opinion,” said Douglas, the Amherst College professor.

“On the other hand, is the court meant to be radically out of touch with what we might describe as the constitutional meanings of the American people? There, I would think the answer’s no.”

Calls for reform

For their part, Democrats have seized on questions of court bias to renew long-shot pushes for court reform.

In the wake of the affirmative action ruling, US Representative Hank Johnson highlighted a bill that would expand the number of justices on the court to 13.

“This judicial activism must be met with passage of my legislation to expand SCOTUS [Supreme Court of the United States],” Johnson said in a statement following the ruling. Congress has previously added seats to the court seven times — though the last expansion came in 1869.

Former Speaker of the House of Representatives Nancy Pelosi, meanwhile, endorsed term limits for justices, who currently serve for life. She highlighted recent reports that Justices Thomas and Alito received undisclosed trips from Republican mega-donors who had business before the court, raising ethical concerns. Both justices have denied wrongdoing.

“It’s shameful how Justice Thomas and Justice Alito have been so cavalier about their violations,” Pelosi told MSNBC. She too called for reform of court procedures: “Here we have a body, chosen for life, never have to run for office, nominated, confirmed for life with no accountability for their ethics behaviour.”

Questions about the ethical authority of the Supreme Court — and perceived conflicts of interest — could have long-term consequences, according to experts like Douglas.

The court has been called upon to intervene in hotly contested elections, like the 2000 presidential race. With the 2024 elections on the horizon, Douglas warned that a similar scenario could happen again, making public confidence in the court a necessity for the peaceful transfer of power.

“You really want to make sure that the court enjoys enough prestige so that whatever decision it makes would be seen as solving a constitutional crisis, rather than exacerbating it,” Douglas said.

Source: Al Jazeera