The Supreme Court’s turn to the right goes far beyond guns and abortion


When former President Donald Trump’s third Supreme Court nominee in 2020 was confirmed, cementing the most conservative majority in the court since the 1930sIt was unclear which conservative goals the justices would tackle first. Culture war issues like abortion, the right to bear arms, affirmative action, and religious freedom were obvious possibilities, but issues with a more subtle impact like control the power of the executive branch and limiting unions has long been on the wish list of conservative legal advocates as well. So the question was not either the court would move to the right; it was more a question of where they would start.

The term is not over yet, but it already looks like this year could be a bonanza for conservatives, and not just because of the high-profile cases that have garnered most of the attention. I’ve written about how judges could limit or void Roe v. calf, the 1973 case that established the constitutional right to abortion, and expand gun rights for the first time in more than a decade. But there are several other less conspicuous cases that could also have devastating effects on American lives.

It seems highly likely, for example, that judges will continue to erode the barrier between church and state by require states to fund religious schools in programs where they already support non-religious private schools. Conservative judges could also prevent the ability of government agencies to act independently of Congress by giving more power over their decisions to the conservative federal judiciary.

“This term is a gift basket for conservatives who wanted to elect Trump so that he could appoint justices to the Supreme Court,” he said. leah litman, professor of law at the University of Michigan. “It is becoming increasingly clear that conservative judges are interested in promoting the law on a lot of important issues that have huge practical consequences for the way our government works and for people’s lives.”

The separation between church and state is likely to continue to erode

In some rural areas of Maine, children’s enrollment in non-religious schools is covered by state funds. This provision does not apply to religious schools, but that could be about to change. Two families who send or want to send their children to private religious schools south of the state, saying they should be able to receive a refund for tuition at those schools as well. They argued that if Maine paid for children to attend some private schools, excluding religious schools was unconstitutional.

In oral argument on the case in December, conservative judges seemed inclined to agree with families. Maine attorneys and the Biden administration argued that the program was intended to provide a handful of children in isolated parts of the state with something akin to a public school education, largely without fostering a religious worldview. But several of the judges seemed unconvinced. “Everyone [the families] what they ask for is equal treatment, not special treatment ”, said Judge Brett Kavanaugh. “They are saying, ‘Don’t treat me worse because I want to send my children to a religious school instead of a secular school. Treat me like the secular father next door. ‘

Lee Epstein, a political scientist at Washington University in St. Louis who studies the Supreme Court, told me she believes Maine families will easily prevail. With eric posner, a law professor at the University of Chicago, analyzed Roberts’ court record on religious freedom and cases of separation between church and state and found that judges sided with religious organizations in more than 80 percent of cases, a staggering increase of around 50 percent in previous courts since 1953. “This court is ruling in favor of religious plaintiffs at an incredibly high rate, “he said. “I see this case as a continuation of that trend.”

A victory for families in Maine would also continue a long streak of victories for religious plaintiffs in the more specific area of ​​school funding. Several cases in recent years have focused on funding religious schools, and the court has undermined states’ ability to prevent religious schools from receiving taxpayer money. In 2017, for example, a 7-2 majority, including two of the Liberal justices, Elena Kagan and Stephen Breyer, ruled that Missouri could not exclude a religious school from a public grant for the resurfacing of the playground. And three years later, in 2020, a decision of 5-4 effectively destroyed the constitutional provisions of the state prohibiting public funds from going to religious schools, ruling that Montana could not exclude religious schools from its private school scholarship program. Now, Maine families and their supporters point to those two cases as precedents.

The court’s path in these cases, thus far, embodies the incrementalism that Chief Justice John Roberts seems to prefer. The first decision was incredibly limited: The judges made it clear that it applied only to state grants related to the resurfacing of the playground, but it left the door open for more far-reaching cases. Each subsequent case has built on the previous one, with ever-widening implications. The Montana case opened the door for legislators in more states to create programs that benefit religious schools. Now, depending on how the judges rule, the Maine case could open a new path for religious schools to receive public funding.

That, in turn, could lead to even more extreme cases, and a possible abandonment of the gradualism that Roberts values, depending on how other conservatives feel. “Every time they come to one of these decisions, they are changing the window on Overton and inviting conservative advocates to ask them to go further,” Litman said. And there are many signs that there is an appetite for a sharper turn to the right. Just last year Republican-appointed judges indicated they were willing to reconsider a long-standing precedent limiting constitutional protections for religious conscience.

Depending on how the case for this term turns out, and where judges are heading next, this line of cases in schools could affect even more contested religious freedom disputes, such as whether publicly funded charities or owners of Businesses that serve the general public may discriminate on the basis of their religious beliefs. “We could end up with a situation where states are required to fund programs that discriminate on the basis of race or sexual orientation, ”Litman said.

The court could begin to restrict the power of the executive branch

Some cases that make it to the Supreme Court are easily understandable to non-attorneys, but most are not. However, that does not mean that they do not have a major impact on the lives of Americans, and that is particularly true in cases that involve the power of the executive branch. This term, two of those seemingly sleepy disputes could significantly weaken the power of federal agencies and give a great deal of veto power to federal judges, many of whom are highly conservative.

It is true that the details of the cases do not constitute fascinating reading material. In one, which the Supreme Court heard in November, hospitals are a challenge the federal government’s system for calculating Medicare reimbursements. In the other one – technically four grouped cases and scheduled for discussion in late February: GOP-controlled states, energy companies, and coal mine operators are arguing that an Obama-era plan to combat climate change is not authorized by law of Clean Air.

But beneath those dry-sounding disputes there is a long battle over what the executive branch is actually allowed to do. In the case of hospitals, judges could, for example, reconsider a judicial doctrine First established in a 1984 case involving the energy company Chevron, which gives federal agencies a lot of leeway to interpret the laws they are charged with carrying out. The idea behind the Chevron doctrine is that Congress cannot anticipate all the little problems and problems that arise as laws are enacted, and agency experts are capable of making reasonable decisions in situations where the law is ambiguous, and perhaps most importantly, they are in a better position to make those calls than the judges. The case of climate change, for its part, implies a latent legal doctrine called “no delegation”, limiting the amount of power that Congress can delegate to federal agencies. In recent years, conservative justices, especially Justice Neil Gorsuch, have made clear their desire to restrict or nullify the chevron doctrine, Y recover the doctrine of non-delegation.

It is difficult to overstate what is at stake in these two cases at a time when much of the country’s royal government, for better or for worse, occurs in the executive branch. Environmental issues, workplace safety, health care, employment discrimination, and more are handled by various administrative agencies. Furthermore, with Congress in a perpetual stalemate, it is hard to imagine lawmakers responding to these potential rulings by drafting laws with more specific instructions for those agencies, if that is possible. “There are many things that Congress cannot anticipate or that might not be worth it,” Litman said. “Do you really want Congress to try to figure out something like the proper level of a particular chemical that may be in buildings?”

So the practical impact of repealing the Chevron doctrine or reimposing the no-delegation doctrine would be to give judges more influence over federal regulations. “If you look at it skeptically, this would amount to giving the judges more power,” Epstein said. Given the conservative tilt of the federal judiciary, that would likely lead to the repeal of many regulations, which would be a blow to the power of the presidency overall, but would likely have the biggest impact on Democratic presidents.

None of these cases have received much attention thus far, which could make it easier for the court to do something quite dramatic without receiving much criticism. And given how technical the cases involving particular federal agencies are, the court may not have to worry about going against public opinion anyway. But for conservative advocates watching the courts, these cases matter a great deal, meaning this term could mark an even more pronounced shift to the right than the non-attorneys among us can expect.


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