Justice Brett Kavanaugh (posing here as a choirboy) and Chief Justice John Roberts. (photo: Getty Images). See photo at end of story for another side of Boy-Brett.
06 July 21
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many ways the 2020 term at the Supreme Court followed the progression
of the coronavirus. There were different phases and stages, distinct
strains and variants; there was death and grief and new life and
rebirth. And through it all there was gaslighting and denial. Until
about a week ago, we heard a lot of media stories of a confounding and unpredictable court, with improbable lineups
and unlikely bedfellows. And sure, there has been a lot of that. But
Thursday saw a change in narrative with the thunking down of two cases
that seemed to poke at the very fabric of democracy; a one-two punch
that took aim at Section 2 of the Voting Rights Act and the ability to challenge election laws that burden racial minorities, and seemingly opened the floodgate
to unaccountable and untraceable dark money flooding into a system that
is already drowning in it. It almost defies comprehension that a
Supreme Court that devoted so much energy, all year long, to appearing
removed from partisan politics, chose the very last day of the term to
let us know that when the rubber hits the road, partisan politics is
what matters.
It’s hard to find a metric to measure which story holds up. Was it a 3-3-3 court? Was it a 4-4-1 court? Was it a 2-2-1-2-3 court? Only Count von Count might be able to say. Each of those tales was true, and also not true. There were only 58 merits cases from which to judge. Some of the seeming blockbusters fizzled: The Affordable Care Act challenge not only failed but got kicked to the curb. It turns out enough time has passed to make ACA challenges passé, and also that throwing people off their health care plans in a pandemic was too Dickensian for even this court. The swearing cheerleader got a lot of media attention, because who doesn’t like Cocoa Hut, middle fingers, and varsity cheer? But the case stands for the enduring First Amendment proposition that student speech off campus is to be tolerated, unless it is not. The same basic rule emerged from Fulton v. Philadelphia—what should have been the most important religious liberty case of the year was decided unanimously and seems to stand for the landmark principle that if there is any discretion within your foster care certification policy, it isn’t a generally applicable policy, but who knows what all else. As we have been writing in this space for years now, the court is phenomenally good at using the distinction between the warp speed of political time and the slow burn of judicial time to make big things seem inconsequential and tiny things seem vital.
The statistical measures of winning and losing justices will only get you so far. It’s true that the liberal justices were in the majority a lot. It’s true that Justices Brett Kavanaugh and Amy Coney Barrett seem to have staked out a middle place with Chief Justice John Roberts that leaves a far-right flank of the court frustrated at the slow progress of reactionary change. It’s also true that Justices Clarence Thomas and Sam Alito are in a hurry whereas the three Trump justices and Roberts seem to know they have decades in which to operate.
On criminal justice and immigration, the lineups were sometimes surprising. On voting rights, not at all. The Chamber of Commerce won 83 percent of the time at the court this year—no surprises there. The court chose not to take a long-standing challenge to the transgender bathroom case that has roiled the conservative culture wars docket for years. And none of what we have described takes into account what happened on the shadow docket this term, where late night, unsigned orders in matters that were never argued or fully briefed significantly changed the way the court looks at death penalty cases, religious liberty, and election law. In a sense, the court that operated in the shadows in 2020–21 was as consequential as any that operated in the light of day. Yet in at least some of those episodes, we still don’t even know which justices authored critical opinions or even who signed on to them.
If the 2020 term ends up standing for anything beyond the decimation of voting rights and undermining of campaign finance disclosure protections, it will be for the 2020 election cases the court flirted with in the summer and fall, then slouched away from when it mattered in November. That four justice were at least tempted to get involved in fights about mail ballots, vote fraud, and the power of the courts to interfere in elections is chilling, yes. That a majority of the court’s six conservatives decided to stay away from Rudy Giuliani and Sidney Powell’s claims about stolen ballots and hacked machinery in November doesn’t mitigate the fact that they were all in for the Republican Party’s efforts to stymie minority voting based on the lie of vote fraud in June.
Look a bit closer at the court’s two bitterly divided voting rights cases this term, and we can see where this Supreme Court is headed next. Back in October, before Barrett joined the bench, the justices split 4–4 over the Pennsylvania Supreme Court’s modest extension of the deadline for mail ballots. At the time, it was easy to see what the four hardcore conservatives were teeing up: A postelection Bush v. Gore–style case in which the Supreme Court handed itself the power to nullify thousands of legal ballots. To do so, they tried to stop state judiciaries from protecting voting rights under their state’s constitution—a notion that was too radical even for the Bush v. Gore majority and constituted a direct assault on states’ rights to set their own election rules. They also floated Trumpian conspiracy theories designed to undermine public confidence in the integrity of the election. And they even suggested that Democratic election administrators were meddling with ballots.
But the Four Horsemen lost, and Donald Trump lost much too decisively for them to get a rematch. In the months that followed, Republicans flooded the courts with frivolous lawsuits attempting to overturn the election. These challenges, it cannot be stressed enough, were meritless nonsense—a symptom of the rot at the heart of the conservative legal movement that never stood a chance in court. Yet when the Supreme Court predictably turned them away, the conservative justices received praise for staying out of the election. Even Justice Stephen Breyer lauded the court for staying out of the conflict. But the Supreme Court did get involved in the 2020 election. The conservative justices fought hard to disqualify a huge number of valid mail ballots in swing states like Pennsylvania and North Carolina. Just because they did not succeed, and declined to hop on Sidney Powell’s crazy train to Kraken town afterward, does not mean they didn’t try.
Now fast-forward to Thursday’s 6–3 decision in Brnovich v. DNC mangling what remains of the Voting Rights Act beyond all recognition. As Justice Elena Kagan wrote in dissent, the majority opinion is a “law-free zone.” It rewrote the VRA to strip protections from racial minorities who are currently being targeted by voter suppression laws around the country. Roberts and Barrett sided with the rest of the conservatives to ensure that a substantial number of minorities will struggle to access the ballot in 2022 and beyond—if they manage to cast a vote at all. There was no compromise here, as in Fulton, no 3-3-3 split that divided the conservatives. When it came to eviscerating the VRA, the Republican-appointed justices spoke with one voice.
Decisions like Brnovich hedge against the necessity of a future Bush v. Gore. Why wait until the eve of an election to disenfranchise voters when you can do it in the middle of the summer of an off year? If we pluck out these two major voting cases and examine them side by side, we see an alarming trend: an overt hostility to democracy and to equal access to the ballot. If we look at Brnovich sandwiched in between compromises like Fulton, by contrast, it might not seem that bad—a conservative victory, yes, but one of just a few decisions that fractured the court along ideological lines.
This is a trompe l’œil. The rush of opinions at the end of the term can diminish the impact of a disaster like Brnovich. But single out the cases that really matter, the ones that affect Americans’ ability to govern themselves, and the court doesn’t look so unpredictable or nonpartisan. It looks a lot like what Democrats feared the most when Kavanaugh and Barrett replaced their more liberal predecessors. It looks, in short, like an ultra-conservative Supreme Court that has taken aim at the one right preservative of all other rights.
Roberts, Kavanaugh, Barrett, and sometimes Gorsuch play the long game. They may each serve on the bench for decades to come. This term, they began to set the table. But apart from Brnovich, the cases were appetizers. The main course will arrive in the coming years. It was always silly to expect a monumental shift during Barrett’s first eight months on the bench. She may well hold this seat well into the 2050s. And by going big in cases that undermine democracy, she and her conservative colleagues have bought themselves more time to dismantle the other remnants of progressive jurisprudence.
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