IN THE AUTUMN America’s Supreme Court seemed destined for a momentous shift when Republicans rushed to confirm Amy Coney Barrett, a conservative judge, to succeed Ruth Bader Ginsburg, a liberal jurist who had died in September. In place of a wavering 5-4 conservative tilt that had held for decades, by the end of October the high court had a 6-3 majority of Republican appointees—the most unbalanced array in a century. Yet as the final rulings of Justice Barrett’s first term arrive (including, on June 23rd, a win for students’ speech rights and a loss for union organisers), the dynamics of the newly constituted Supreme Court seem more complex, and less extreme in their results, than many expected.
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Justices have life tenure and evolve on the job; a few dozen cases constitute a limited introduction to the kind of judge Justice Barrett will turn out to be or how her presence will reshape the court. But in her first eight months in robes, it seems her votes have changed the result from the one if Ginsburg had ruled only three times: on June 21st, in a case involving the status of administrative patent judges, and in November and April, when Justice Barrett voted in favour of churches challenging covid-19 public-health regulations. The latter votes reflected the newest justice’s tendency to defer to those who object to rules that burden their religious lives.
But when she had a chance to extend this principle—as strongly demanded by religious conservatives—she demurred. In Fulton v Philadelphia, decided on June 17th, the Supreme Court unanimously sided with a Catholic social-service agency that had cried foul when Philadelphia’s city government sidelined it because the organisation would not approve same-sex couples as foster parents. According to a 1990 precedent, Employment Division v Smith, neutral laws that apply generally do not offend the First Amendment even if they indirectly hamper religious practice. But since Philadelphia allowed exceptions in its anti-discrimination rule (even though the city had not granted any), Chief Justice John Roberts wrote for the court, its ordinance was not “general” and therefore, given the impact on the foster-care agency, violated the constitution.
Despite the 9-0 result, Fulton was far from a full win for the Catholic plaintiffs. The foster-care agency had asked the justices to overrule Smith and clarify that all burdens on the exercise of religion potentially violate the constitution. Yet only three justices—led by Samuel Alito, who wrote an irate 77-page concurring opinion—were keen to abandon Smith. Chief Justice Roberts, Justice Barrett and Justice Brett Kavanaugh joined the three liberal justices to leave the three-decade-old precedent intact and resolve Fulton on narrow grounds. In fact, the majority opinion seemed to concede implicitly that anti-discrimination laws denting religious conscience do pass constitutional muster as long as they apply across the board.
A similar rift was on display in another significant case released on the same day: California v Texas, the third serious attack on the Affordable Care Act (ACA) to reach the court since 2012. Each time the justices have taken up such a challenge, they have resolved it in favour of Barack Obama’s health-care law. And the margin has steadily widened, even as the court has grown more conservative—from 5-4 in 2012 to 6-3 in 2015 and 7-2 this month. During her Senate confirmation hearing last autumn, Democrats pointed to Justice Barrett’s criticism of the earlier decisions and warned that she may be crucial to dismantling the ACA at last. This doomsday did not come to pass: with the exceptions of Justices Alito and Neil Gorsuch, the court again refused to strike down the ACA and strip 31m Americans of health coverage.
In their counterintuitive challenge, Texas and 17 other Republican states claimed that the law had become unconstitutional when, in 2017, Congress eliminated the financial penalty attached to the “individual mandate”—the requirement that most Americans buy health insurance. In the end, the court did not touch that matter. Instead, the majority ruled that the plaintiffs had not been harmed and thus did not even have standing—ie, the legal right to bring the case.
Technical solutions helped the justices flick away other charged controversies. Late last year, when Donald Trump and his allies were litigating his electoral loss, the Supreme Court shot down two last-ditch lawsuits with deep procedural flaws. On December 8th a one-sentence order put a halt to a Pennsylvania state representative’s bid to stop his state from certifying Joe Biden’s win. And three days later, another terse order snuffed out Texas’s attempt to suspend Mr Biden’s victories in Georgia, Michigan, Pennsylvania and Wisconsin. For Stephen Vladeck, a law professor at the University of Texas and Supreme Court litigator, some of the court’s most important decisions of the term “may have been its decisions not to get involved”.
Yet in the run-up to the election, as emergency requests from Republicans to limit pandemic-inspired voting accommodations rolled in, the justices were active in policing election administration. The court blocked kerbside voting in Alabama, narrowed the window for absentee voting in the Wisconsin primary and reimposed witness requirements for mail-in ballots in South Carolina. These and other orders make up the so-called “shadow docket”—requests for quick relief, dealt with without oral argument or full briefing and often resolved without written opinions or even recorded votes. Mr Vladeck observes that two dozen significant cases have been handled this way since the autumn, compared with 58 cases on the regular docket.
Of the 50 cases the justices had settled by June 23rd, there had been just four 6-3 decisions along ideological lines and 24 unanimous rulings. Over the past three years, the court’s unanimity rate has hovered just below 40%, making this term, no matter what happens with the eight judgments that have yet to arrive, the most consensual since 2016.
But unanimity, as Fulton shows, does not always mean speaking with one voice. The three liberal justices (Stephen Breyer, Elena Kagan and Sonia Sotomayor) seem to have held their fire; in return Chief Justice Roberts crafted a narrow decision that gave the Catholic fostering agency a win without setting a precedent that would undermine gay equality. Justices Alito, Gorsuch and Thomas are itching to hasten a conservative revolution but, for now, the liberals, the chief and Justices Barrett and Kavanaugh are on a more cautious path paved with narrow rulings. Instead of split 6-3, the court is more like 3-3-3. Will these coalitions hold next year when the justices craft potentially landmark decisions on guns, abortion and maybe affirmative action? “We’ll know quite a lot more about the new conservative majority”, Mr Vladeck says, “this time next year.” ■
This article appeared in the United States section of the print edition under the headline “The 3-3-3 court”