Justices found common ground in controversial cases, largely side-stepping ideological splits


This week’s campaign and free speech cases aside, the Supreme Court closed out its first term with Justice Amy Coney Barrett and a 6-3 conservative majority by showing surprising agreement on everything from Obamacare to religious freedom to the 2020 elections.

David Cole, national legal director for the American Civil Liberties Union, said his organization could breathe a “sigh of relief” after fears of an aggressive court scything through precedent didn’t come to pass.

“This is not a court that has divided like the rest of the country has on controversial issues,” he said on Wednesday. “It is nowhere near as bad as people had thought.”

Mr. Cole spoke before Thursday’s hefty rulings, which did split 6-3 on cases that upheld Arizona’s election restrictions, and that struck down California’s attempt to get a look at secret tax documents identifying donors to nonprofit interest groups.

In each of those rulings the six GOP-appointed justices were in the majority, and the three justices appointed by Democrats dissented.

After the death of Justice Ruth Bader Ginsburg and the confirmation of Justice Barrett, the third Trump nominee to make the high court, liberal activists had feared and conservatives had anticipated plenty of those sorts of rulings, as the GOP-named justices flexed their muscle.

But there were just 10 rulings issued with a 6-3 split along those ideological lines, according to SCOTUSBlog, which tracks the bench. Another eight cases were settled on 5-4 rulings with GOP appointees in the majority.

More common were cases like the 8-1 ruling earlier this month in favor of a foul-mouth high school cheerleader. The court, grappling with key First Amendment issues in the social media era, said school officials did not have a right to punish her off-campus speech blasting the cheer squad online.

Only Justice Clarence Thomas dissented from that decision.

Court watchers were surprised by a unanimous ruling in an LGBT rights case where the justices said Philadelphia violated Catholic Social Services’ First Amendment rights by trying to force it to place children with same-sex couples, violating the organization’s religious tenets.

And in a 7-2 ruling, the justices — despite its conservative majority — dismissed a challenge to Obamacare, ruling conservative states didn’t have standing to bring their challenge.

That case had been a major flashpoint during Justice Barrett’s confirmation hearing last year, with Democrats predicting she would cement the doom of the 2010 Affordable Care Act.

Instead, she was part of the majority in a 7-2 ruling tossing the case.

Carrie Severino, chief counsel at the Judicial Crisis Network, said the Democrats were just trying to “scaremonger” over the case ahead of the 2020 election.

“I don’t think anyone who was really looking seriously at that case thought the ACA was going to be struck down,” she said.

Former President Donald Trump’s first pick to the high court, Justice Neil M. Gorsuch, dissented in the Obamacare case, but Justice Brett M. Kavanaugh, Mr. Trump’s second pick, joined Justice Barrett, Chief Justice John G. Roberts Jr., Justice Samuel A. Alito Jr. and the court’s three Democratic appointees.

Mr. Trump let his frustration be known.

“I am very disappointed,” he told Real America’s Voice after the Obamacare ruling. “I fought very hard for them, but I was very disappointed with a number of their rulings.”

The court avoided some high-profile cases thanks to the change in administration, including a case on asylum policy and one on the legality of Mr. Trump’s diversion of money from Pentagon accounts to build the border wall.

President Biden reversed Trump-era policies and said they were no longer ripe for consideration. The justices agreed and deleted them from the docket.

Of the cases that were decided, Justice Kavanaugh emerged as the center of the court this term, according to SCOTUSBlog, which tracks the bench and said he was in the majority in 97% of cases.

“He is the median vote,” said Ilya Shapiro, director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies. 

Chief Justice Roberts and Justice Barrett were runners-up to Justice Kavanaugh for most times in the majority, analysts said.

“The fact that Barrett was in the majority as often as Roberts puts the lie to Democrats’ warnings that she would be a right-wing ideologue,” said Curt Levey, president of the Committee for Justice. 

“Overall, the Court’s decisions this term were moderate, with plenty of non-predictable configurations of justices,” he added.

There were plenty of disappointments for progressive activists even before Thursday’srulings.

Dan Goldberg, legal director for the Alliance for Justice, said the term was “sad” for the American people.

“The fact that a majority of the court did not adopt a ludicrous argument to take healthcare away from millions should not overshadow the fact that just today John Roberts and the other Republican appointed justices continued their decades long push to eviscerate the Voting Rights Act, and making it easier for Republican state legislatures to entrench themselves in power by suppressing the vote,” he said. 

Mr. Goldberg and experts from the American Civil Liberties Union warned about controversial cases on the court’s docket for next term when the justices return from their summer recess in October.

Already on the court’s agenda is a Mississippi ban on abortions after 15 weeks. 

And the justices are set to test the limits of the Second Amendment with a case challenging New York’s requirement that people prove they have a reason to carry a concealed weapon in order to get a permit.

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