A Supreme Court, Transformed

The latest version of the Supreme Court — with Donald Trump’s three appointees — is starting to come into focus. It is both ideologically predictable and unpredictable, depending on the issue.

On many matters, including health care, immigration, crime and several social issues, the court is conservative but not uniformly so. Majorities often transcend ideological lines, with decisions sometimes disappointing conservative activists and pleasantly surprising liberals. “It’s nowhere near as bad as people thought,” David Cole of the American Civil Liberties Union said last week.

These surprises accomplish a top priority of Chief Justice John Roberts: bolstering the court’s image as a nonpartisan institution. A central question about Trump’s three choices — Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch — was whether they would take a similar approach to Roberts. He is deeply conservative but cares about forming cross-ideological coalitions. By contrast, Clarence Thomas and especially Samuel Alito are more reliably conservative.

If the three newest justices had joined Alito and Thomas, the five of them could rule the court, without Roberts. So far, however, Barrett and Kavanaugh have voted more like members of the Roberts camp, as Adam Liptak, The Times’s Supreme Court reporter, told me. Gorsuch has taken an approach somewhere between Roberts’s and Alito’s.

‘A clump’

“There is a clump in the middle of the court,” Adam says. As a result, the three Democratic appointees — Elena Kagan, Sonia Sotomayor and Stephen Breyer — can end up in the majority, as long as they are joined by at least two of the six Republican appointees.

In this term, the court upheld Obamacare with a seven-justice majority that included the three liberal justices, Barrett, Kavanaugh, Roberts and even Thomas. There were also cross-ideological rulings limiting a federal law on computer crime; favoring an immigrant facing deportation; favoring student free speech; favoring college athletes’ ability to be paid; and allowing a Catholic agency to refuse to work with gay parents (but more narrowly decided than conservatives wanted).

To be clear, the court is more conservative than it was a few years ago, when it included Ruth Bader Ginsburg (who was replaced by Barrett) and Anthony Kennedy (who was replaced by Kavanaugh). You can see the new conservatism in rulings limiting government regulations that affect religion, as well as in a decision that expanded the use of life sentences without parole for juveniles.

Still, it’s often hard to predict exactly how this conservatism will manifest itself — and who will be in the majority. As Jeannie Suk Gersen wrote in The New Yorker, about the most recent term, “The justices repeatedly defied expectations, with conservatives and liberals together forming majorities in high-profile cases in order to avoid or defer the fighting of deeper wars.”

But there are two issues on which the court tends to be both predictable and aggressively conservative: democracy and business regulation.

The two exceptions

The court’s conservative majority has ruled on multiple occasions that state officials can restrict voting access and redraw legislative districts without violating federal law. The state officials enacting these measures are almost always Republican, and many political experts believe that the measures will help the party win elections.

The court’s democracy rulings cut against Roberts’s preferred image of the court as an institution above partisan politics: Six Republican-appointed justices are issuing decisions that benefit Republican politicians, even when doing so conflicts with principles of majority rule. “This court will smile upon even the worst vote suppression efforts being undertaken by Republican legislatures,” Scott Lemieux of the University of Washington has written.

The most recent example came last week, in a six-to-three decision — along partisan lines — that upheld two Arizona voting restrictions. The decision was sweeping enough that civil rights advocates will struggle to bring future cases alleging discrimination in voting access, legal scholars say.

The second area where the justices tend to be reliably conservative is business regulation. They generally take a laissez-faire approach that is skeptical of government oversight, hostile to labor unions and deferential to corporations. In the most recent term, the court made it harder for consumers to sue companies for misbehavior and harder for labor unions to organize farmworkers.

These rulings continue a long tradition of the court siding with businesses over workers, as the journalist Adam Cohen argued in “Supreme Inequality,” a recent book. “The Supreme Court has played a critical role in building today’s America, in which income inequality is the largest it has been in nearly a century,” Cohen wrote.

Business regulation is one of the few high-profile areas in which the liberal justices regularly join conservative rulings. “Contrary to a narrative out there, most decisions in business cases are not decided by narrow majorities,” Daryl Joseffer, the chief legal counsel at the U.S. Chamber of Commerce, said on a recent call with journalists. Breyer is the Democratic appointee who most often sides with business.

And the future?

What does this mean for the future of the court? I see three questions to watch in the next term, which starts in October:

• Will Barrett’s more moderate approach continue? New justices are often cautious in their first term, Adam Liptak says. Sometimes, that moderation continues, and sometimes it does not.

• Will the court’s unpredictability apply to abortion? Next term’s highest-profile case offers the justices a chance to overturn Roe v. Wade. But the justices’ approach to this past term suggests that the most likely outcome may be a significant restriction of abortion access that still stops well short of overturning Roe.

• How aggressive will the justices’ pro-business approach be? The court has agreed to hear a case that touches on a legal principle known as “Chevron deference,” which essentially gives government regulators flexibility to interpret federal law. If the court overturns Chevron deference, it would be a big deal, limiting the Biden administration’s ability to regulate corporations — including its ability to regulate pollution and fight climate change.

For more: Read Adam’s analysis of the most recent term.

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