Analysis-'Aggressively conservative' Supreme Court plunges into U.S.
culture wars
Send a link to a friend
[January 25, 2022]
By Lawrence Hurley and Andrew Chung
WASHINGTON (Reuters) - The U.S. Supreme
Court's decision to hear a case that could doom university policies
considering race as a factor in student admissions is the latest sign of
the conservative majority's eagerness to put its stamp on America's most
divisive issues.
The court already was due to issue rulings by the end of June in cases
giving the justices a chance to curtail abortion rights and widen gun
rights - major goals of U.S. conservatives. The case targeting the
student admissions practices of Harvard University and the University of
North Carolina, taken up by the court on Monday, gives the conservative
justices a chance to cripple affirmative action policies long despised
by the American right, with a ruling expected next year.
The court has become increasingly assertive since the addition of former
President Donald Trump's third appointee, Amy Coney Barrett, in 2020
gave the nation's top judicial body a 6-3 conservative majority. Her
appointment changed the court's dynamics by marginalizing Chief Justice
John Roberts, considered an incrementalist conservative.
"This particular six-justice majority seems willing to push ahead in an
aggressively conservative direction on multiple fronts, without feeling
the need to be moderated by concepts of judicial restraint, stare
decisis or incrementalism," said Elizabeth Wydra, president of the
liberal Washington-based Constitutional Accountability Center advocacy
group.
Stare decisis is the legal doctrine of respecting precedents.
Based on oral arguments held last year, the court's conservatives seem
poised, in a case from Mississippi, to undermine or even overturn the
landmark 1973 Roe v. Wade ruling that legalized abortion nationwide and,
in a case from New York, expand the right to carry firearms in public.
The court's increasingly aggressive stance toward taking up new cases
signals an emboldened majority accelerating its rightward shift, court
watchers said.
The court appears "more willing to reconsider precedent and consider
broad questions when the opportunity arises," said Jonathan Adler, a
professor at Case Western Reserve School of Law in Ohio.
Before conservative Justice Antonin Scalia's 2016 death and the
subsequent addition of Trump's appointees - Neil Gorsuch, Brett
Kavanaugh and Barrett - the court had been more cautious in deciding on
what types of cases to hear.
It had a 5-4 conservative majority, but one of the conservatives,
Justice Anthony Kennedy, sometimes sided with the liberals on
contentious "culture war" issues including abortion, affirmative action
and LGBT rights. That led to the court occasionally avoiding contentious
cases or taking up disputes with lower stakes. It appears no longer to
have such qualms.
[to top of second column]
|
Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan,
Associate Justice Neil Gorsuch, Associate Justice Amy Coney Barrett,
Associate Justice Samuel Alito, Associate Justice Clarence Thomas,
Chief Justice John Roberts, Associate Justice Stephen Breyer and
Associate Justice Sonia Sotomayor pose for a group photo at the
Supreme Court in Washington, U.S., April 23, 2021. Erin Schaff/Pool
via REUTERS/File Photo
'POLITICAL APPEARANCE'
Four justices are needed in order for the court to take up a case.
And it has at least that many who are undeterred by being perceived
as political actors, said University of Denver political science
professor Joshua Wilson, who specializes in conservative law and
politics.
"Given the political appearance of the docket that they're putting
together, it's all the more remarkable given that they have to know
how much the public is paying attention," Wilson said.
The role of Roberts, who has sought to defend the court as an
institution and has avoided quick and dramatic moves, has been
diminished, with the conservative bloc able to prevail in rulings
even if he sides with the liberal justices. Roberts served as the
court's swing vote after Kennedy retired in 2018 and before Barrett
replaced the late liberal Justice Ruth Bader Ginsburg two years
later.
"When Roberts was the median (justice), even the four justices to
his right were worried about where he would end up," said John
McGinnis, a professor at Northwestern University School of Law in
Illinois.
The justices now seem keen to dive in - sometimes even before lower
courts have fully considered cases - as they did in multiple
challenges to Trump administration policies blocked by lower courts.
The conservative justices also have exhibited skepticism toward the
power of federal agencies, which could hem in President Joe Biden
and future administrations. The court, for example, this month
blocked the Biden administration's COVID-19 vaccination-or-testing
mandate for companies with at least 100 employees.
In what might be described as part of what some conservative
activists label a "war on the administrative state" - curbing
federal agency authority - the justices have taken up two cases
challenging the scope of landmark environmental laws aimed at
reducing air and water pollution. They did so despite Biden's
administration asking them to hold off while agencies write new
regulations.
Ian Fein, a lawyer with the Natural Resources Defense Council
environmental group, said the court was "incredibly aggressive" in
taking up the two cases.
The court has also made bold moves on religious rights.
Before Kennedy retired, it was generally supportive of religious
challenges. That stance has deepened since then, including rulings
backing religious groups challenging COVID-19 restrictions. The
court last week heard a case from Maine that gives it an opportunity
to further expand public funding of religious entities.
(Reporting by Lawrence Hurley and Andrew Chung; Editing by Will
Dunham and Scott Malone)
[© 2022 Thomson Reuters. All rights
reserved.] This material may not be published,
broadcast, rewritten or redistributed.
Thompson Reuters is solely responsible for this content. |