A tentative Supreme Court term ends. Liberals should brace themselves for the next one.
The recently completed Supreme Court term was a tentative and transitional one. In part because Brett Kavanaugh’s bruising confirmation fight was not concluded until after the term was underway, the Court either failed to tackle or fully resolve many of the critical issues it can be expected to face in the coming years.
The Court provided some clues about what’s on its mind, but much remains in the air. We still don’t know how the Court will deal with Roe v. Wade, or whether and how the Court will aggressively revive pre-New Deal doctrines that limit the ability of the federal government to regulate business. Answers to those questions will likely arrive as soon as the next Supreme Court term.
It’s clear that replacing Anthony Kennedy with Brett Kavanaugh will move the Court to the right — the only question is how far to the right and how fast. For most of his tenure on the Court, Kennedy was a genuine swing vote, providing a critical fifth vote for the more liberal justices on issues like reproductive freedom, same-sex marriage, and the death penalty.
Kavanaugh will not be doing that. And while this term mostly lacked cases on such high-profile issues, this will likely become more evident next term, Kavanaugh’s first full one since his confirmation last fall.
Here are five takeaways from the latest term of the Supreme Court.
1) Brett Kavanaugh is very conservative
Maybe this wasn’t a surprise, but it’s noteworthy all the same. In his first term, Donald Trump’s newest appointee voted most often with Chief Justice Roberts (94 percent) and the Court’s most orthodox party-line conservative, Samuel Alito (91 percent). He appears less radical and idiosyncratic than Trump’s first nominee, Neil Gorsuch (who votes most often with his fellow idiosyncratic radical Clarence Thomas).
But that cuts both ways: Gorsuch is more likely to take far-out conservative positions, but is also more likely to join the more liberal justices on a swing vote in cases that don’t represent core issues for legal conservatives. Gorsuch is far from a consistent civil libertarian, but he did provide a crucial fifth vote in criminal justice cases, ruling that a sentencing enhancement provision was unconstitutionally vague and upholding the right to a jury trial.
To put it another way, a Court with Gorsuch as the median vote would be further to the right than if Kavanuagh was in the middle — but with Chief Justice Roberts as the median vote, Gorsuch will lead to more liberal results than Kavanaugh will, because Gorsuch’s eccentric views are more likely to be in alignment with liberals on particular issues even if they’re more reactionary on balance.
Kavanaugh’s nomination gives every appearance, in other words, of being a home run for Republicans.
2) The Chief Justice wants to go slowly on abortion
In February, the Chief Justice joined with the Court’s four Democratic nominees to stop from going into effect a Louisiana abortion law that would have left only one abortion clinic open in the entire state. The law was extremely similar to the Texas law the Court struck down in the 2016 case Whole Woman’s Health v. Hellerstedt, so the decision by the Fifth Circuit to let the law stand reflected a prediction on its part that the Court was about to give much wider latitude to states to regulate abortion.
To be clear, Roberts voting for a temporary stay to prevent the law from going into effect does not mean that he will ultimately vote to strike down the Louisiana law when it comes back in front of the Court. He dissented in Whole Woman’s Health and it is extremely unlikely that he’s changed his mind since.
Rather, his joining the liberals most likely reflects two factors: 1) he did not want the Fifth Circuit essentially nullifying a recent Supreme Court precedent; and 2) he did not want the Supreme Court to signal a major shift on abortion rights so soon after the confirmation of Kavanaugh.
The medium-term prognosis for abortion rights remains very bleak, but Roberts is apparently not in any hurry to make waves on the issue most strongly associated with the Supreme Court politically.
3) The Court is about to go to war on the regulatory state
One of the most important Supreme Court cases of the term had little immediate impact. In Gundy v. United States, the Court in an opinion by Obama nominee Elena Kagan ruled as constitutional a Department of Justice rule that Congress had authorized it to create requiring some sex offenders to register as such after a designated date.
What made the case potentially important was that three justices — including Chief Justice Roberts — dissented, arguing that the rule should have been struck down as an unconstitutional delegation by Congress to the executive branch. Justice Kavanaugh, however, did not participate in the case (which was argued before he joined the Court), and Justice Alito filed a concurrence indicating that he would “support [the] effort” if “a majority of this Court were willing to reconsider the approach we have taken for the past 84 years.”
All in all, it added up to an ominous sign that an assault on the regulatory state may be in the offing.
Alito was referring to two 1935 cases, Panama Refining v. Ryan and Schechter Poultry v. U.S., that ruled that Congress had unconstitutionally delegated powers to the executive branch, putting the executive in the position of illegally usurping Congress’s legislative powers rather than just enforcing the law.
As Alito correctly noted, those cases have been observed in the breach since then, and for very good reason. Legislative delegation — often involving less specific policy choices than the one under review in Gundy — is such a ubiquitous part of the regulatory state established by the New Deal that reviving non-delegation doctrine would wreak havoc on critical government agencies like the EPA. Statutes like the Clean Air Act set broad goals and rely on the expertise of executive agencies to determine the details. Reviving non-delegation doctrine would put many of these regulations at risk of being voided by the courts.
While the idea of the Court forcing elected officials to make clearer choices might sound superficially attractive, in practice non-delegation doctrine represents unsophisticated assumptions about how the legislative process functions, and judicial intervention is enormously unlikely to generate a coherent rule or produce a better process. But the libertarian push for the revival of non-delegation isn’t so much to improve the legislative process as to hamstring the executive branch, and the Roberts Court now seems poised to advance that goal.
4) The 2020 Census may or may not include a citizenship question
On the last day of the term, the Court issued a very fractured ruling in Department of Commerce v. New York. The case concerned the attempts by the Trump administration to add a question about citizenship to the 2020 census — which critics say is a political move designed to marginalize people of color by giving them less federal representation.
After oral argument, it seemed highly likely that the Trump administration would prevail, despite multiple lower courts having held the addition of the question illegal. However, the Court did not allow the question to go forward as of now. The Court’s four Democratic nominees sided with the lower courts that the addition of the question was arbitrary and capricious (and hence illegal under the Administrative Procedures Act), while four of the Republican nominees would have allowed the question to immediately go forward.
Roberts sided with the Trump administration on most of the questions but held that the reason offered for the change by Commerce Secretary Wilbur Ross — that the Trump administration added the question to better enforce the Voting Rights Act — was clearly a pretext. (Given that the Trump administration has literally never sued to enforce the VRA, this shouldn’t have been hard to determine.) “Accepting contrived reasons,” Roberts argued, “would defeat the purpose of the enterprise.” So the Court sent the issue back to the lower courts and invited the Commerce Department to offer a more plausible justification.
Given that the evidence indicates that asking about citizenship will cause racial minorities to fill out the census at lower rates — reducing their federal representation and share of federal funds — whether the question ends up on the census is not a trivial matter. But it remains unclear whether it will. Particularly in light of the recently revealed smoking gun evidence that the question was designed precisely to underrepresent minorities, the lower courts might issue a ruling against the question that will hold up. But it’s perhaps more likely that the Commerce Department will come up with another pretext that Roberts will accept.
5) American elections are about to get even less fair
Another last-day ruling by the Court was less ambiguous. In Rucho v. Common Cause, the Court ruled that even the most egregious partisan gerrymandering was a “political question” beyond the reach of the federal courts. In this case, the Court’s signal was clear: No matter how much partisan gerrymanders disenfranchise voters, the Court will not interfere.
While the Court’s position is clear, however, how states will respond is not. As Eric Levitz of New York magazine points out, large blue states will have to decide whether to engage in nonpartisan districting as a model or whether they will try to engage in the most aggressive pro-Democratic gerrymanders computer technology makes possible. One perverse upshot of Rucho is that the more unfair a state’s elections, the more representation they receive at the national level, making an eventual race to the bottom likely.
The end result will ultimately make democracy worse while being a net plus for Republicans. Which is also a fair summary of the impact of the Roberts Court — an impact that is only likely to deepen in the coming years.
Scott Lemieux is a lecturer in political science at the University of Washington, specializing in constitutional law, the Supreme Court, and American political institutions and development. He is, with David Watkins, the co-author of Judicial Review and Contemporary Democratic Theory: Power, Domination and the Courts. He blogs at Lawyers, Guns & Money.