This is not your father’s Supreme Court. The dividing lines on the court closely mirror the dividing lines in America on guns, class, race and LBGT issues. All of these lines are sure to clash in the upcoming session.
Historically, the Supreme Court has either been fairly liberal or narrowly split between right and left with a moderate in between (Sandra Day O’Conner). This has allowed the steady expansion of the state into formerly state controlled areas such as healthcare, education, abortion and a host of other issues.
That was until Sandra Day O’Conner stepped off the court in 2006 and George Bush reshaped the face of the court with his nomination of Samuel Alito. He followed this up with John Roberts soon after.
What has followed has been a string of victories for conservatives on the court. Citizens United protected the right of corporations and unions to spend in elections, the discriminatory Section V of the Voting Rights Act was repealed and the court has ruled in favor of guns rights in a number of cases (Heller being the most notable).
But. the court’s rightward stance should not distract from the fact it is deeply divided along the same lines America is. Despite the number of unanimous or near unanimous decisions the Court has found recently many of its most high-profile decisions have been narrow majorities.
The examples of this are numerous. In Citizens United the court was split 5-4. In Heller the court was split 5-4. In NFIB vs. Sebelius (2012) the court upheld Obamacare on a 5-4 vote but gutted the Medicaid Expansion mandate along the same lines. The Section V ruling was split 5-4 and the Hobby Lobby and religious contraception issues were swung on the same one vote margin.
All of these cases involved major issues continuing to be fought in American politics. Religious freedom, money in politics, racial discrimination, etc. all are the issues Republicans and Democrats run on. They divide the court in the same way.
The general description of the Supreme Court is it is split 5-4 along conservative lines. But, in reality, it really depends on the issue. On gun rights and religious liberty, yes, the court has a clear 5-4 right leaning majority. All four liberal justices have shown their intolerance to religious institutions being exempt from government mandates. But, on government regulations and power, the court is split 3-4 in favor of liberals with Roberts and Kennedy being the swing vote. For example, Roberts upheld Obamacare in 2012 and both he and Kennedy upheld the law’s subsidies in 2015. Additionally, Kennedy found the government had a compelling interest in housing regulations in 2015.
Perhaps the starkest dividing line in the court is on abortion and LGBT rights. Kennedy helped the court’s four solid liberals overturn DOMA. In Hodges, Kennedy took his farthest step to the left by mandating the legalization of gay marriage across the nation in 2015. He did this not based on precedent or the rule of law but on “dignity.” As has been pointed out, deciding cases on an idea as ambiguous as “dignity” is a dangerous.
In both DOMA and Hodges, Roberts sided with the court’s conservative wing and made clear he found government edicts on cherished religious values something dangerous. In cases such as Hobby Lobby this argument has swung Kennedy. It most recently swung Kennedy and two of the court’s four liberals in the recent Trinity Lutheran case.
Not to be forgotten, Kennedy also sided with the court’s four liberals in striking down an expansive abortion restriction law passed by Texas. Kennedy is no fan of abortion but it is clear he favors O’Conner’s views on abortion where it should be limited in scope but not restricted in any meaningful way. Roberts sided with the court’s conservatives.
Simply put, the narrative the court has a conservative majority is overly simplistic and misleading. It simply depends on the issue. On campaign finance issues and religious liberty issues such as contraception mandates the court clearly leans to the right. The same with gun rights and race. But, on LBGT issues and government power/authority the dynamic is clearly different.
That is what makes the next batch of cases the court will take so interesting. They may skew these dividing lines. On state’s rights (which I have not mentioned until now) the court clearly leans to the right as evidenced by their striking down of numerous lower court rulings on gerrymandering and special election mandates. But, they did decide to take up a partisan redistricting case that will likely hinge on where Roberts and Kennedy fall (does the court really want to decide how much partisanship is okay).
The biggest case pitting competing views against each other on the court will be a number of consolidated cases relating to bakers and other businesses refusing to participate in gay marriages. This is the legacy of Kennedy, opening up a pandora’s box of intolerance directed at those who are supposedly intolerant against the LBGT community.
It is hard to gauge where Kennedy would lean on the issue. Kennedy is no opponent of religious liberty as evidenced by recent rulings but he also clearly favors LBGT rights over some religious liberties. Will he continue that trend or oppose it?
The Supreme Court will largely avoid racial or gun related issues in the next term but they will explore Presidential power through Trump’s travel ban. It is clear though through their temporary ruling partially allowing the ban to be implemented that lower courts findings the ban cannot implement Presidential authority supersedes rhetoric.
These fault lines are nothing new in American politics but they are fairly new in terms of dividing the Supreme Court. Trump’s nomination of Gorusch to the court merely maintained the dividing lines. It did not change them.