A New Era for the Supreme Court
(American Prospect) The just completed Supreme Court term will come to be regarded as the beginning of a new era in constitutional history: a time of a very activist Court that aggressively follows the conservative political agenda. This term was the most conservative since October 1935, when the Supreme Court repeatedly declared unconstitutional key New Deal laws. The 2017–2018 term was a year filled with cases of unusual importance, and the conservative position prevailed in almost every case.
One measure of this term’s conservatism is found by looking at the 5–4 decisions. There were 19 5–4 rulings out of 63 decisions. Justice Anthony Kennedy voted with Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch in 14 of them. He voted with the liberal justices—Ruth Bader Ginsburg, Stephen Breyer, Sonya Sotomayor, and Elena Kagan—zero times. A year ago, in the ideologically divided cases, Kennedy was with the liberals 57 percent of the time. Two years ago, Kennedy was the key vote to uphold the University of Texas’s affirmative action program and to strike down key provisions of Texas’s restrictive abortion law.
Now, there is every reason to believe that Kennedy’s replacement will be in the mold of Neil Gorsuch: young and very far to the right. All of the names on the Trump list would be more conservative than Kennedy has been over the past three decades. In that way, this term, where Kennedy always voted with the conservatives, is the harbinger of what is to come.
What explains the decisions of October term 2017 is not any principle like judicial restraint or originalism, but simply the conservative values of the majority of the justices. The justices were adhering to the vision of the Republican platform. As Justice Kagan expressed in her powerful dissent in Janus v. American Federation, where the Court overruled a 40-year-old precedent and held that non-union members cannot be forced to pay the share of the union dues that support collective bargaining, the Court’s decision was rooted in neither precedent nor sense. The Court ruled for Janus “because it wanted to.”