Your Father’s Supreme Court

Old-school justices advance the right’s agenda while discarding much of Trump’s.

The centrist now. Photo: Erin Schaff/Pool via REUTERS
The centrist now. Photo: Erin Schaff/Pool via REUTERS

There were moments during the Supreme Court’s term when it seemed like Donald Trump wasted his time as president installing three conservative justices.

Yes, the Court moved to the right on religion, voting rights, and other issues, but it also upheld Obamacare after a third GOP challenge. It ruled narrowly against LGBTQ equality when most observers thought it would deliver a major victory for “religious freedom.” And, lest we forget, it declined to intervene in the 2020 presidential election, despite Trump’s predictions about “my justices” doing just that.

But it would be a mistake to see these decisions as liberal, or even moderate.  They are, instead, conservative, part of the Court’s rightward turn, not apart from it. But conservative in a pre-Trump, pre-Fox News mode that emphasizes judicial restraint and discipline, alongside bedrock conservative views on voting, finance, religion, and criminal justice.

We’ve almost forgotten this kind of conservatism, so thoroughly have the likes of Trump, Tucker Carlson, and Josh Hawley dominated the GOP and the “conservative” imagination of late. But the Court’s conservative majority has not, and conservatism was in full force throughout the 2020-21 term, even as Trumpism lost several crucial battles.

Most notably, the Supreme Court moved far, far to the right, especially on its final day, when two 6-3 decisions, along ideological lines, staked out bold new jurisprudential territory on voting rights and campaign finance.

In Brnovich v. Democratic National Committee, the Court dismissed challenges to two Arizona voting restrictions, but it didn’t just swat them away. Instead, out of whole cloth, Justice Alito wove a new, five-part test for when a facially neutral voting restriction such as Arizona’s could be found to be racially discriminatory. That test, far more than the substantive result in Brnovich, will make it almost impossible to challenge the raft of onerous voting restrictions that Republicans have already passed in Georgia, Florida, and Iowa, and will soon pass in other states they control as well.

To take but one example, states are released from justifying its restrictions at all — they can restrict voting simply because they feel like it — but challengers are required to prove not just that the restrictions have a disproportionate impact on Black populations, but that they place a heavy burden on individual voters. Under Alito’s test, it’s hard to see how any of the new attacks on voting rights could be struck down.

Similarly, in the final day’s other case, Americans for Prosperity v. Bonta, Chief Justice Roberts announced a new rule that any campaign-donor disclosure requirement must be “narrowly tailored to the government’s asserted interest,” even if the requirement places no burden whatsoever on billionaire donors. Under these two decisions, disenfranchised Black voters denied the opportunity to vote face a higher hurdle for success than billionaires asked to disclose their identities in confidential state filings.

But the Court’s conservatism wasn’t just saved for the last day of the term. Over the course of the year, in a series of four decisions on COVID restrictions and religious institutions, the Court’s newly empowered conservatives carved out vast new territory for religious actors seeking special treatment under the law. Tellingly, the first two cases were decided before Justice Ginsburg’s death last September went 5-4 for the government; the second two, after her replacement by Justice Barrett, went for the churches.

The conservative justices’ claim, though, were consistent throughout: the state is discriminating against religion. In a California case, Justice Kavanaugh wrote that the state’s safety guidelines “discriminate against places of worship and in favor of comparable secular businesses,” even though pharmacies are not at all comparable with churches where large groups of people congregate, speak and sing for an hour. In the second, regarding a Nevada rule, Justice Gorsuch wrote in dissent that there “it seems, it is better to be in entertainment than religion” even though casinos are, in fact, less dangerous than churches when it comes to COVID. In a third decision, about a New York regulation, Gorsuch, now in the majority, wrote that the First Amendment “prohibits government officials from treating religious exercises worse than comparable secular activities,” this time referring to bike shops and hardware stores, which are clearly not “comparable” when it comes to viral transmission. And finally, Gorsuch triumphantly tossed out a California rule treating churches differently from bus terminals (once again, quite different epidemiologically), saying that “when a State so obviously targets religion for differential treatment, our job becomes that much clearer.”

What explains this bizarre refusal to understand that different buildings should be treated differently? Outside the courthouse, Alito, Barrett, Kavanaugh, and Gorsuch have decried the supposed “war on religion” — most infamously Alito, who said so in a speech to the Federalist Society at the height of the pandemic. It is chilling that this conspiracy theory, once the provenance of Christian nationalism, is now held by a majority of Supreme Court justices.

But then, in June, something curious happened: The Court passed on an opportunity to redraw church-state law from scratch in Fulton v. City of Philadelphia, about a Catholic charity refusing to vet same-sex couples as foster parents. The right wanted the Court to junk a 1990 precedent that facially neutral laws may often be constitutional even if they burden the exercise of religion, and instead hold that any impact on religion should trigger “strict scrutiny” of the governmental action. That would have been a revolution in non-discrimination laws of all types and would mean that religious corporations, individuals, and organizations would live in a different legal universe from the rest of us.

But the Court didn’t take the bait.  Instead, it decided the case narrowly and unanimously, finding that since Philadelphia had an exemption already built into its system, and affirmatively chose not to grant it, it violated the rights of the charity. The swing votes, surprisingly, were Justices Barrett and Kavanaugh.

And yet, if you read the Fulton decision carefully, you learn that not only do Barrett and Kavanaugh favor overturning the 1990 precedent, so does Justice Breyer and perhaps Roberts. They just don’t think it’s necessary to do so to decide this case. In other words, even though Fulton was a conservative decision, it was grounded in the philosophy of judicial minimalism, which holds that judges and justices should decide as little as possible to resolve the cases before them, not reaching for grand gestures when smaller ones suffice. That allows the democratic process to unfold, and limits the power of unelected judges. That principle isn’t always in effect — certainly not in the Brnovich voting-rights case — but it was here.

It also explains the Obamacare case, California v. Texas, in which the Court voted 7-2 in dismissing the right’s third Supreme Court case challenging the Affordable Care Act. Roberts, Thomas, Kavanaugh, and Barrett joined the three liberals in upholding the ACA not because they like it — Thomas wrote a scathing concurring opinion saying how much he thinks it is unconstitutional — but because the challengers lacked standing to file the suit. Once again, the conservative principle is don’t get involved where you don’t need to get involved, especially in politically hot cases.

Judicial minimalism also animated the Court’s most momentous non-decisions of the term: declining to hear a single one of Donald Trump’s ludicrous challenges to the 2020 election. This non-action was a momentous decision for democracy, especially through the prism of January 6. And yet, despite it being a defeat for Trump, it was, again, a conservative thing to do. Courts, especially the Supreme Court, ought not get more involved in elections than they must. That is a bedrock principle of republican government (arguably one ignored back in Bush v. Gore) and upholding bedrock principles is what conservatism used to be about.

In other words, the conservative supermajority issued ideologically conservative decisions on voting rights, civil rights, and church-state separation, and judicially conservative ones on LGBTQ equality, Obamacare, and the election. This isn’t a mixed bag. It’s just that after four years of Trump, it’s easy to forget what real conservatism looks like and how effective it can be.

Your Father’s Supreme Court