Since the Supreme Court wrapped up business on June 30, liberals have condemned the just-ended term as further evidence of an extreme right-wing Court, while a substantial number of conservatives have grumbled that the term didn’t live up to their expectations. Both views are misguided.
On the last day of the term, Senate Majority Leader Chuck Schumer denounced the “MAGA-captured Supreme Court.” President Biden’s take a day earlier was that “This is not a normal Court.” That’s awfully hard to square with the reality of a term whose major decisions broke about 50-50, right and left.
Conservatives were pleased by big decisions ending race-based university admissions, striking down Biden’s student debt cancellation, narrowing the EPA’s regulation of wetlands on private property, siding with a website designer who does not want to endorse gay weddings, and strengthening the requirement for religious accommodation of employees.
Liberals, on the other hand, were pleased by major decisions upholding racial gerrymandering, rejecting a challenge to Biden’s immigration policy, favoring Native American adoption rights, rejecting a conservative election law doctrine (the independent state legislature theory), and—on the shadow docket—leaving the abortion drug mifepristone widely available
Not only were the big decisions an even split, but two of the major rulings on the conservative side of the ledger—those involving the EPA and religious accommodation—were unanimous. So how right-wing could those decisions have been?
The picture is similar if we look beyond the major rulings. Justices Sotomayor and Jackson, the two most liberal members of the Court, were on the winning side of more cases this term than Justices Thomas and Alito, the two most conservative members.
Liberals have nonetheless stuck to their claim that the Court is dominated by a solid majority of six conservative Justices. But only five cases were decided by ideological six-three splits. In fact, Chief Justice Roberts and Justice Kavanaugh were both more likely to vote with Justice Kagan than with Justice Thomas this term.
Many on the Left and in the media have tried to defend the picture of a solid right-wing majority by explaining that Roberts and Kavanaugh vote with the Court’s liberals only out of concern for the institution’s reputation. Perhaps these Court observers are able to read the Justices’ minds and divine that Roberts and Kavanaugh are hiding their inner right-wing ideologues. But the bottom line is that a Court whose decisions break roughly 50-50 right and left is a moderate Court, regardless of the Justices’ secret thoughts.
The Court’s moderate output this term has led some conservatives to express disappointment. They are happy with Justices Thomas and Alito, who often found themselves in dissent, but less happy with Chief Justice Roberts and President Trump’s appointees.
That is understandable as far as it goes. Some on the Right want consistently conservative outcomes from the Court, and that’s not what they got this term or are likely to get in future terms.
Instead, what this Court is likely to provide on a consistent basis is a conservative judicial philosophy grounded in textualism and its close cousin originalism, with enforcement of standing requirements and a healthy but not slavish deference to precedent. That approach stands in sharp contrast to the Left’s “living Constitution” philosophy, which is focused on outcomes—that is, ones that promote progressivism—without much concern for how the Court got there.
For the most part, a conservative judicial philosophy is what we got this term. The Court’s adoption of the independent state legislature theory would have been a gratifying win for conservatives, but it was a constitutional stretch, and even the most conservative Justices did not embrace it. Similarly, Texas and Louisiana’s assertion that they had standing to challenge Biden’s immigration policy was a stretch, and eight of the nine Justices rejected it.
Standing also played a major role in the Indian Child Welfare Act case. The strongest argument against the Act is that it discriminates based on race. But even Justice Kavanaugh, who wrote a concurring opinion sympathetic to the argument, agreed with six other Justices that plaintiffs lacked standing to raise it.
In the abortion pill case, the challengers were up against a long history of virtually total deference to FDA decisions. And in the racial gerrymandering case, Alabama’s argument for a race-neutral redistricting standard had plenty of appeal for conservatives when viewed de novo, but the state faced forty year old Supreme Court precedent to the contrary.
Some of these five cases would have been decided differently if the other Republican-appointed Justices were clones of Justices Thomas and Alito. However, each of the five decisions was reasonable when viewed from a jurisprudentially conservative perspective.
Senate Minority Leader Mitch McConnell put it well earlier this month when he said that “the exceptionally qualified Justices Washington Democrats have spent years vilifying continue to prove their restrained and independent jurisprudence.” Restrained and independent jurisprudence is precisely what the Founding Fathers intended. It stands in sharp contrast to the ideologically right-wing Court portrayed by the Left and should be a source of pride for conservatives.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at email@example.com.