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Major 6-3 rulings foreshadow a sharper Supreme Court right turn

Analysis by Ariane de Vogue, CNN Supreme Court Reporter

All term long the Supreme Court has been the target of political players as members of Congress called for a “legislative solution,” the Biden administration launched a commission to study court reform and progressive groups claimed that court packing measures were necessary to “save” the Supreme Court.

Meanwhile, conservatives relished the possibility of a swift right turn with their new 6-3 majority after Justice Ruth Bader Ginsburg died last September and Amy Coney Barrett joined the bench the next month.

By the last day of the term, the justices finally issued their own verdict.

They handed out a pair of decisions with deep political undertones that will bolster the narratives put forward by the poles of both parties. The justices also foreshadowed fissures that will likely widen next year as the court hears blockbuster cases with broad social implications concerning abortion, the Second Amendment and possibly affirmative action.

Which isn’t to say that the term wasn’t entirely made up of 6-3 opinions on ideological lines. Two of the most important cases of the term were 7-2 and 9-0 and there were 29 unanimous opinions.

But Republicans and conservatives are finally getting the decisions they pined for as former President Donald Trump changed the face of the courts and liberals are preparing for a bloodbath.

Big 6-3 decisions on politics and unions

The court’s new majority was in full force on Thursday as it limited the ability for minorities to challenge state laws they believe are discriminatory under the historic Voting Rights Act in a case involving two Arizona laws that a lower court said had a disparate impact on minorities in the state.

Justice Samuel Alito, echoing comments from Trump and Republican-led states claiming election fraud from last year’s presidential election, reversed and stressed for a 6-3 court what he called a state’s “entirely legitimate interest” in the prevention of fraud.

He said that the Arizona laws were akin to the “usual burdens of voting” and added that while the Voting Rights Act “exemplifies our country’s commitment to democracy” the law does “not deprive the States of their authority to establish non- discriminatory voting rules.”

His opinion drew a fierce dissent from Justice Elena Kagan who said the majority had “no right to remake” the law and that it “should not be diminished by this court.”

Thomas A. Saenz, president of the Mexican American Legal Defense and Educational Fund said in a statement that the court’s “majority is woefully disconnected from social and historical reality, particularly when it comes to the experiences of racial minorities who continue to face daily depredations of basic rights in our country.” President Joe Biden, the Justice Department and liberal groups also criticized the ruling.

In another case Thursday, Chief Justice John Roberts, writing for the same 6-3 divide, invalidated a California regulation that required charities to disclose their donors. He said the law “casts a dragnet” for sensitive information and that the state lacked a good justification.

Justice Sonia Sotomayor, writing for the liberals, expressed fear that the decision will likely lead to the invalidation of other donor disclosure laws which would allow more “anonymous” money into the political system.

In June, the justices also divided along ideological lines in ruling that California cannot allow unions to enter the property of agricultural businesses to address workers, unless the businesses are compensated for the visit, in a case that could have broad property rights implications.

Roberts, again showing his solid conservative bona fides, was at the helm as the court dealt another blow to public sector unions. Roberts said that allowing the workers on the property, even for brief periods of time amounted to an unconstitutional “taking” of the property. Justice Stephen Breyer, writing for the liberal dissenters, feared the decision would “threaten to make many ordinary forms of regulation unusually complex or impractical.”

Barrett’s impact was also felt in fights over religious liberty implications of state Covid restrictions. When Ginsburg was still alive, the court voted in favor of the states with Roberts serving as the swing vote. But after Barrett’s confirmation, the houses of worship won. In one order concerning California, the court actually moved the law on religious liberty, something that doesn’t often occur on what is called the “shadow docket” where emergency orders are produced without the benefit of briefs and oral arguments.

Obamacare and religious liberty

The vote count in one of the highest-profile cases of the term was 7-2. It concerned what Alito called “the third installment in our epic Affordable Care Act trilogy.” Republican-led states and individual plaintiffs argued that when Congress amended Obamacare in 2017 bringing the tax penalty down to zero, it removed the legal underpinning of the individual mandate (that the law was legal as a tax) rendering the entire, sprawling law unconstitutional.

Seven justices dismissed the dispute on the grounds that the Republican led states did not have the legal right or “standing” to bring their challenge because they couldn’t show a concrete injury related to the action Congress took.

Roberts — perhaps in an effort to avoid headlines that he had “saved” the law again after his controversial vote in 2012 — assigned the opinion to Breyer.

At oral argument, liberal Justice Elena Kagan, a keen tactician, had hinted at the result when she questioned a lawyer for the Trump administration. “The United States is usually pretty stingy about standing law,” she said. She left unsaid the fact that conservative justices are also usually more stingy when it comes to who can bring a case to court.

Notably, neither Kagan, Breyer nor Sotomayor chose to explain their thinking by writing separately, relieved, perhaps, that the challenge would go away and health care insurance would stand in the wake of a worldwide pandemic.

Even conservative Justice Clarence Thomas, who made clear his distaste for previous ruling in favor of the law, agreed that the challenges “have not identified any unlawful action that has injured them.”

“Although this Court has erred twice before in cases involving the Affordable Care Act, it does not err today,” he said.

Alito, writing a dissent double the size of the majority opinion and joined only by Gorsuch, rejected the majority’s standing argument. He said he would have ruled in favor of the states behind the challenge and to invalidate the law.

“No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats,” Alito wrote. “Fans of judicial inventiveness will applaud once again.”

And in a footnote, he suggested more challenges to come. “Many other parties will have standing” to bring claims, he said.

In another of the term’s marquee cases, all nine members sided with a Catholic foster agency that refused to work with same sex couples as potential foster parents out of religious objections to same-sex marriage. It was a clear win for the agency and a loss for Philadelphia that argued that the agency violated a state anti-discrimination law.

Roberts wrote for six of the justices.

But Alito, again, was not satisfied with a modest path Roberts took tying the decision in large part to the fact that the contract between the city and the agency allowed for some exemptions even as the city refused to grant the agency an exemption for its religious objections.

This time, Alito garnered the support of Gorsuch and Thomas and wrote a 77-page concurrence (about three times longer than Roberts’ opinion) to lay out how the court should have gone much further to overrule precedent and issue a landmark opinion. He said that his colleagues relied upon “what appears to be a superfluous” and “short lived” feature of the City’s standard annual contract with foster care agencies.

“This decision might as well be written on the dissolving paper sold in magic shops,” Alito lamented. He said if the city “wants to get around the decision “it can simply eliminate the never-used exemption power” and “voila, today’s decision will vanish.”

Court watchers were perplexed by the long-term implications of Roberts’ opinion. Progressives were relieved and divined that Breyer, Kagan and Sotomayor sought common ground in an effort to head off a broader decision that would have overturned precedent from 1990 and make it much harder for the government to pass laws that allegedly impinge upon religious beliefs.

In another opinion, the court unanimously sided with student athletes who challenged certain NCAA spending restrictions on educated related benefits. The court again, dealt just with the case at hand, with the majority saying they were not taking a look at the larger question concerning other spending limits that the NCAA say are justified in order to maintain its amateur status.

Only Justice Brett Kavanaugh, noted basketball fan and middle school coach, went further. He agreed with the court’s opinion but suggested that the NCAA business model is in trouble.

Late in the term the court also left in place a lower court opinion that allowed a transgender male public school student to use the bathroom that he said corresponded with his gender identity. Although another challenge could make its way up to the Supreme Court it was clear victory for LGBTQ rights and only Thomas and Alito noted that they would have taken up the dispute.

President Trump

At the end of the first term with all three of Trump’s appointees on the bench — Gorsuch, Kavanaugh and Barrett — proved that Trump did not always get what he wanted in the short term, although in the long-term judges will likely be his most lasting legacy.

Asked by Real America about his Supreme Court picks, the former President said he was “disappointed” with the vote on Obamacare and other rulings. “Disappointed, and that’s the way it goes. … I fought very hard for them but I was very disappointed with a number of their rulings,” he said.

It was that way for him all term. The court rebuffed his hopes to overturn election results. It ultimately allowed his tax returns to go out to a New York prosecutor. And it allowed the ACA, the most important legislative achievement of the Obama administration and that Trump vowed to destroy, in place.

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