News Analysis: Supreme Court under Roberts moved right on religion and voting this year
The Supreme Court ended its term this week just as predicted when the year began, with its six conservatives handing down rulings that favored religious liberty, property rights and Republican-sponsored election laws.
But in between, the justices spent most of the year playing the role of diligent lawyers trying to resolve cases with reasonable rulings that broke no new ground, avoiding controversy when possible.
It reflects the two faces of the court led by Chief Justice John G. Roberts Jr. for the last 16 years. Most often, he has sought to bring the court together with consensus rulings. However, on matters involving race, civil rights or elections, he has helped push the law sharply to the right.
Roberts has long preferred to craft narrowly written rulings as a way to forge consensus. It’s usually better, he has said, to reach a unanimous ruling on a narrow point than to draft broad decisions with justices divided 5 to 4 or 6 to 3. Roberts has also used his tenure as leader to try to keep the court out of the partisan wars that divide Washington.
In this term, a large majority of the cases — 39 of 65 — were decided by a 9-0 or 8-1 vote. These rulings included four government victories over immigrants, a defeat for Ford Motor Co.’s efforts to limit lawsuits, and a win for a California motorist who objected to a police officer following him home and into his garage.
The National Collegiate Athletic Assn. lost an appeal seeking protection from college athletes’ antitrust claims by a 9-0 vote.
In a Pennsylvania case, school officials asked whether they could discipline students for nasty, vulgar or bullying postings on social media. Probably not, the justices said in a 8-1 decision. They ruled for a disappointed cheerleader who had been suspended for a Snapchat post that included four-letter words, but did not decide whether a bully deserved free-speech protection as well.
But this year, as in the past, Roberts has also been willing to hand down strongly conservative rulings that divide the court, particularly on issues related to political power.
One key question this year was elections, particularly after President Trump was defeated in 2020 and continued to falsely claim he lost because of fraud. Despite the absence of widespread fraud, several GOP-led states have since moved to alter state voting laws, citing the need to prevent fraud. Many experts view the measures as attempts to discourage people of color from voting in order to hurt Democrats’ chances.
Civil rights leaders challenged some of these state laws under the Voting Rights Act.
In 1982, a bipartisan Congress had amended the law to prohibit not just intentionally discriminatory rules, but also any “standard, practice or procedure ... which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” As a young lawyer in the Reagan administration, Roberts had argued against this change, but President Reagan signed it into law.
Citing this provision, voting rights advocates argued that even small changes in voting rules should be blocked if they would disproportionately affect Black, Latino or Native American voters.
The court had agreed to decide an Arizona case that would require their first ruling on how to apply this part of the Voting Rights Act.
Roberts had a choice. He could have sought a consensus ruling by adopting a middle-ground position.
Instead, he assigned the opinion to Justice Samuel A. Alito Jr., who rivals Justice Clarence Thomas as the court’s most conservative member. And predictably, Alito’s opinion interpreted the civil rights measure as setting a high bar for plaintiffs .
“Arizona law generally makes it very easy to vote,” Alito began in Brnovich vs. DNC.
The Democratic National Committee had sued to challenge the state’s strict enforcement of an “out of precinct” rule that calls for discarding ballots cast in the wrong precinct. Because of shifting precinct boundaries, Arizona discarded 10 times more ballots than any other state. And Black and Latino voters were more than twice as likely to have their ballots canceled entirely — including their votes for statewide or national offices not tied to a voter’s precinct, such as governor, U.S. senator or president.
Alito discounted the disparity and said the overall impact was “modest.” Moreover, voting remained “equally open” to all because these residents could have voted by mail, he wrote.
His opinion will also make it harder for the Justice Department to prevail in its lawsuit against Georgia’s new voting restrictions. Perhaps anticipating the court’s ruling in the Arizona case, Biden administration lawyers did not contend that Georgia’s law would have the effect of discriminating against Black voters. Instead, they argued the state’s Legislature acted with a discriminatory purpose to make it harder for Black residents to vote.
Alito gave Georgia a good defense. “Partisan motives are not the same as racial motives,” he wrote. Under this notion, Republicans in Arizona, like those in Georgia, were not guilty of racial discrimination if they were seeking to disadvantage Democratic voters who happen to be Black.
The ruling was not a divisive 5-4 split, but a divisive 6-3 split. Justice Amy Coney Barrett, who replaced the late Justice Ruth Bader Ginsburg in October, voted with the majority, although her presence appeared to make little difference in this term’s outcomes.
But while none of the major cases heard this term appeared to turn on her vote, the tenor this year was different.
Last year, the liberal bloc had several major victories. They included extending anti-discrimination protections to LGBTQ employees; blocking Trump’s planned repeal of Deferred Action for Childhood Arrivals, the DACA program, for young immigrants; striking down a Louisiana law restricting abortions; and rejecting Trump’s bid to shield himself and his tax returns from a New York grand jury.
This term the liberals had little to cheer, except perhaps when the court did little or nothing.
For example, after November’s election, the justices stood back and turned away all of the appeals from Republicans and Trump allies seeking to overturn President Biden’s victory.
At the same time, the justices took up a Texas lawsuit backed by Trump that threatened the Affordable Care Act, or Obamacare. Some on the left feared Barrett might cast a key vote to dismantle the law. But the justices disposed of the case, ruling the plaintiffs had no standing to complain about an insurance “mandate” whose tax penalty had been reduced to zero by a Republican-led Congress.
The term’s major culture wars clash ended with a unanimous ruling in favor of Catholic Social Services and its claim of religious liberty. On the losing side was the city of Philadelphia and its ban on discrimination based on sexual orientation. Roberts wrote a narrow opinion that turned on a clause in the city’s contracting rules.
The court did not, however, settle the dispute over whether conservative Christians may invoke their religious views as grounds for exemption from state and federal civil rights laws. That will have to be decided in a future case.
Next term will test whether Roberts and the court are ready to make such major changes or if they’ll stick with a more centrist course. The justices are due to hear cases that challenge the right to abortion, limits on gun rights and, most likely, affirmative action in college admissions.
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