Yet the court did much more this term than reshape the checks on the president.
In some cases, the justices got things right. In the court’s decisions on restrictive Texas and Florida social media laws, Justice Elena Kagan, writing for the majority, explained that these sites have First Amendment protections of their own — a blow to right-wing efforts to stymie these companies’ attempts to moderate content. In the so-called jawboning case, Murthy v. Missouri, the court preserved the White House’s ability to communicate with the same set of companies about posts related to public health and elections.
The news on abortion was, in one case, encouraging: The justices all agreed that the U.S. Court of Appeals for the 5th Circuit was wrong to limit access to the pregnancy termination drug mifepristone. In a case involving Idaho’s attempts to block emergency abortions, they gave desperate women a reprieve — if only for now — dismissing the case as improvidently granted, leaving open the prospect of further proceedings.
But these bright spots contrast with a collection of decisions this term that represents an effort, largely shared by all six of the court’s conservatives, to alter how the U.S. government functions — or, as the case might increasingly be, fails to function. On top of the Trump immunity case, a 6-3 decision last month overruled the long-standing precedent Chevron v. Natural Resources Defense Council, freeing judges from deferring to executive agencies’ interpretations of ambiguous laws. The change weakens the executive branch and hampers the legislative by preventing lawmakers from writing laws broadly in anticipation that executive-branch experts will fill in needed details. Instead, judges will be freer to substitute their own judgment for the agencies’, despite being unelected and inexpert. The latter was clear in Justice Neil M. Gorsuch’s mistaking of nitrous oxide, laughing gas, for nitrogen oxide, an air pollutant, in a recent related ruling that also chipped away at agency authority.
The conservative majority also ruled, 6-3 once again, that South Carolina’s racially gerrymandered voting districts constituted mere partisan gerrymandering — a practice the justices have sanctioned. This will encourage more racial gerrymandering by making accusations thereof nearly impossible to prove.
These outcomes might not seem to have much in common. The immunity case gives the executive more leeway, and the cases involving the administrative state give that branch less. But they fit with a conservative vision for government in which the person of the president is less constrained, even while conservative judges check a bureaucracy designed to bring stability and expertise to the administration of the policy Congress sets.
Many conversations about the Supreme Court this term have concerned not jurisprudence but the justices themselves: whether they are letting their political, even their personal, preferences dictate their votes. The onus has been on them to prove their integrity to the public, after scandals involving everything from luxury vacations and suspiciously generous real estate deals to upside-down American flags. Their decisions haven’t always broken along ideological lines, even on hot-button issues. There have been pleasant surprises, especially from Justice Amy Coney Barrett, who has shown more independence than critics expected.
But this court also issued a hefty 32 non-unanimous rulings this term. The 6-3 lineup, with all Republican appointees at odds with all Democratic appointees, ranked as the most common, occurring 11 times and defining several of the most consequential rulings. Those rulings are altering not simply one law here and another law there, but the government’s modern design. Regardless of the justices’ motivations, the court is hampering federal authorities’ ability to act in the public interest and to protect vulnerable minorities — even when Congress asks them to.
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