When five conservative Supreme Court Justices Roe v. Wade and ended abortion rights in 2022, ushering in a new era for court conservatism in which none of the rights and policies of the 20th century seemed secure.
It also sparked debate about the internal dynamics of this conservative supermajority. Chief Justice John Roberts did not join his Conservatives in overthrowing Roe. Had Roberts lost control of the court to conservative ultras like Justices Clarence Thomas and Samuel Alito? Would he regain control in the next term?
The decisions released at the end of the court’s last term in June — ending affirmative action in higher education, introducing a new right to discriminate against gay couples and repealing President Joe Biden’s student-loan debt relief plan — raise a different question : If this is the case? Doesn’t matter if Roberts is behind the wheel?
The conservative movement that built this court has long sought to roll back legal and policy advances designed to weaken historic bigotry and discrimination and the federal government’s ability to help people harmed by the power of private capital. And they continue down that path, whether Roberts or the Ultra cohort is leading the court.
At first, the conservative movement hoped that Ronald Reagan’s election in 1980 would allow it to sweep away the policies of both the New Deal and the 1960s and 1970s, but it failed to secure the political power to do so through the legislature and executive consolidate. Instead, they launched a legal movement to seize control of the judiciary and enforce their policies outside of the political process.
They’ve been doing that for the last decade. They gutted the Voting Rights Act first in 2013 and again in 2021. In 2022, they blew a hole in restrictions on religious prayer in schools. And, of course, they abolished reproductive rights protections in the Dobbs vs. Jackson Women’s Health Organization case. Her progression continued throughout this tenure.
In abolishing affirmative action in higher education, the court held that the 14th Amendment, enacted to protect and advance the rights of black people after the end of slavery, prevents colleges and universities from using race as a basis for admissions.
While positive action in education was initially implemented to right the historical wrongs of anti-Black racism, from slavery to Jim Crow segregation and so on, later decisions have affirmed them solely on the grounds that they respect diversity in of a school’s student body increased. The court overturned those precedents, fulfilling an unmet political goal that conservatives hoped would be achieved during Reagan’s two terms. In declaring these precedents overturned, Thomas argued that affirmative action “reflected the same naked racism on which segregation itself was built.”
In repealing Biden’s student loan debt relief plan, the court continued the conservative movement’s policy goal of curtailing the executive branch’s ability to regulate or alleviate the ills of private capital. To that end, they developed the comprehensive “Major Questions Doctrine,” which allows the court to rule that the executive branch has exceeded the powers conferred upon it by Congress.
This doctrine makes the court, as Kagan put it in her dissenting opinion in the student loan case, “the arbiter—even the decision-maker—of national policy.”
In 2022, when the court introduced the major-issues doctrine to crush carbon emissions regulations, Kagan called it a “free-from-text-card” that Conservatives can use to override executive branch directives, contrary to their ideological “goals”. ”
What this doctrine provides is the court’s power to single-handedly approve or disapprove any policy that violates the political goals of the conservative movement that appointed it.
The case of 303 Creative v. Elenis posed a more recent question to the court, transcending the controversies of the 20th century. The court’s legalization of same-sex marriage in 2015 brought a new direction for reactionary anti-LGBTQ politics. In response to antidiscrimination laws in states like Colorado, right-wing Christians have argued that they have the right to deny same-sex couples services like baking wedding cakes or creating wedding websites.
Although the plaintiff in this case had never created a wedding website for anyone, let alone a same-sex couple, the court ruled that the First and 14th Amendments protect business owners from government “compulsion” to provide services to same-sex couples. Judge Neil Gorsuch argued that allowing this type of discrimination was actually an acknowledgment of “tolerance”.
Contradicting this, Judge Sonia Sotomayor wrote: “For the first time in its history [the court] grants a public entity the constitutional right to refuse to serve members of a protected class.”
The conservative movement that brought Reagan to power in 1980 also attempted to suppress the fledgling gay rights movement. It failed miserably, but today a growing reactionary force is trying to extinguish that torch with new tools. The court’s decision, granting the right to discriminate against a protected class on the basis of their religious beliefs, is effective.
While these decisions affirmed the court’s continued conservative stance, other decisions, notably from the chief justice, have drawn praise for Roberts’ restoration of control.
In two important voting rights cases, Roberts – along with Justices Brett Kavanaugh and in one case Amy Coney Barrett – joined the Liberals against their Conservative colleagues. In Moore v. Harper, the court rejected the strongest version of the independent state legislature’s radical theory that would have kept state courts from reviewing congressional district maps or state election laws. And in Allen v. Milligan, Roberts found in a 5-4 decision that Alabama violated the Voting Rights Act by not drawing a second black-majority congressional district.
While these decisions were hailed because they did not destroy the Voting Rights Act, did not completely destroy the separation of powers, and did not allow uncontrolled minority rule, they simply maintained the status quo. That’s a status quo that the court had already weakened when it gutted the Voting Rights Act in Shelby County v. Holder in 2013 and Brnovich v. DNC in 2021, and removed the federal judiciary from considering partisan gerrymandering claims in the Rucho case against Common Cause ruled out in 2019.
Where the conservative bloc of the court is divided, the issue was how quickly the status quo can be changed. Roberts — with his background as a political activist — prefers a slightly slower timeline than the Ultras, but in areas where conservatives have long agreed, where there are limited concerns about damaging the court’s legitimacy, and where doing so is political is beneficial to the Republican Party, He can make good progress.
The conflict arose in Dobbs because overthrowing Roe was both politically detrimental to Republicans and potentially detrimental to the court’s legitimacy. But on an issue like Affirmative Action, which unlike abortion rights is largely unpopular, it’s going full steam ahead.
Democrats and liberals now face the question of how to confront the court or water down its decisions. Following the court’s affirmative decision, Biden declared, “This is not a normal court.” However, when asked about proposals by some lawmakers to add seats to the court to buck the conservative trend, he disagreed.
“If we try to expand the court, we’re potentially forever politicizing it in a way that’s not healthy and that you can’t get back,” Biden said.
Whether through court expansion or not, the only option for liberals is to face the court and respond to its decisions is through politics. The solution does not lie in college admissions officers finding more and more ways to increase minority enrollment. Efforts to create new legal doctrines — or to try to use existing conservative doctrines — do not serve to win in the undemocratic arena of the judiciary either.
The political aims of the court are clear. It completes the realignment that Reagan never accomplished. But it’s vulnerable because The political majority that brought about the Reagan realignment no longer exists.
The question for liberals is how to build a political majority large enough to counteract this. Trying to revive what is lost using the same old tools of bureaucratic policymaking and court decisions is not a solution. Building a majority through politics is the only way to assert the power of the people over the anti-democratic whims of the judges.
As Abraham Lincoln said in debating the court’s horrific Dred Scott decision: “If the policy of the government on vital issues affecting all the people is to be irrevocably determined by decisions of the Supreme Court…the people will not.” more her own rulers who to that extent had practically entrusted her government to this eminent tribunal.”