When five conservative justices on the Supreme Court overturned Roe v. Wade and ended the right to an abortion in 2022, it signaled a new era for the court’s conservatism, one in which none of the rights and policies that emerged from the 20th century appeared safe.
It also spawned a debate over the internal dynamics of that conservative supermajority. Chief Justice John Roberts did not join his fellow conservatives in overturning Roe. Had Roberts lost control of the court to the conservative ultras like Justices Clarence Thomas and Samuel Alito? Would he regain control in the next term?
The decisions released at the close of the court’s most recent term in June ― ending affirmative action in higher education, declaring a new right to discriminate against gay couples and voiding President Joe Biden’s plan for student loan debt relief ― present a different question: Does it even matter if Roberts is in the driver’s seat?
The conservative movement that built this court has long sought to roll back the legal and policy advances meant to blunt historic bigotries and discrimination, as well as the ability of the federal government to aid people harmed by the power of private capital. And they are continuing on that path whether Roberts or the ultra cohort runs the court.
At first, the conservative movement hoped that Ronald Reagan’s election in 1980 would allow them to sweep away the policies of both the New Deal and the 1960s and 1970s, but they could not consolidate political power to do so through the legislative and executive branches. Instead, they launched a legal movement to win control of the judiciary and enact their policies outside of the political process.
That is what they have done over the last decade. They gutted the Voting Rights Act, first in 2013 and again in 2021. They blew a hole in restrictions on religious prayer in schools in 2022. And, of course, ended protections for reproductive rights in Dobbs v. Jackson Women’s Health Organization. Their progress continued this term.
In ending affirmative action in higher education, the court declared that the 14th Amendment, enacted to protect and advance the rights of Black people after the end of slavery, prevents colleges and universities from taking race into consideration in admissions.
While at first affirmative action in education was implemented to correct the historic wrongs of anti-Black racism, from slavery to Jim Crow segregation and on, it was upheld in later decisions solely on the basis that it increased diversity in a school’s student body. The court gutted these precedents, fulfilling an unfinished policy goal that conservatives hoped would come during Reagan’s two terms in office. Thomas, in declaring those precedents overturned, argued that affirmative action reflected “the same naked racism upon which segregation itself was built.”
Jabin Botsford/The Washington Post via Getty Images
By voiding Biden’s student loan debt relief plan, the court continued the conservative movement’s political goal of restraining the executive branch’s ability to regulate or alleviate the ills of private capital. To do so, they have developed the sweeping “major questions doctrine,” which enables the court to decide that the executive branch has exceeded the authority delegated to it by Congress.
This doctrine, as Kagan said in her dissent in the student loan case, makes the court “the arbiter — indeed, the maker — of national policy.”
When the court deployed the major questions doctrine to kill carbon emissions regulations in 2022, Kagan called it a “get-out-of-text-free card” that the conservatives can use to void executive branch policies that go against their ideological “goals.”
What this doctrine provides is the power for the court to single-handedly approve or deny policy that violates the political goals of the conservative movement that appointed it.
The case of 303 Creative v. Elenis presented a newer question to the court beyond the controversies of the 20th century. The legalization of same-sex marriage by the court in 2015 spawned a new direction for anti-LGBTQ reactionary policymaking. In response to anti-discrimination laws passed in states like Colorado, right-wing Christians argued that they held the right to deny service, like baking wedding cakes or making wedding websites, to same-sex couples.
Despite the plaintiff in the case never having made a wedding website for anyone, let alone a same-sex couple, the court ruled that the First and 14th Amendments protect business owners from government “coercion” to provide service to same-sex couples. Justice Neil Gorsuch argued that allowing this kind of discrimination was actually a recognition of “tolerance.”
In dissent, Justice Sonia Sotomayor wrote, “For the first time in its history, [the court] grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
The conservative movement that brought Reagan to power in 1980 also sought to quash the still-nascent gay rights movement. It failed mightily, but today a growing reactionary force seeks to snuff out that torch with new tools. The court’s decision granting the right to discriminate against a protected class based on one’s religious beliefs is a potent one.
While these decisions affirmed the court’s continued conservative bent, other decisions, particularly coming from the chief justice, have produced encomiums to Roberts’ reassertion of control.
In two key election law cases, Roberts ― along with Justices Brett Kavanaugh and, in one instance, Amy Coney Barrett ― joined the liberals against their fellow conservatives. In Moore v. Harper, the court shot down the strongest version of the radical independent state legislature theory that would have removed state courts from reviewing any congressional district maps or state election laws. And in Allen v. Milligan, a 5-4 decision by Roberts found that Alabama violated the Voting Rights Act by failing to draw a second majority-Black congressional district.
OLIVIER DOULIERY via Getty Images
While these decisions were cheered for not destroying the Voting Rights Act, not completely gutting checks and balances and not authorizing unchecked minority rule, they simply retained the status quo. That is a status quo that the court had already weakened when it gutted the Voting Rights Act in Shelby County v. Holder in 2013 and Brnovich v. DNC in 2021, and removed the federal judiciary from reviewing partisan gerrymandering claims in Rucho v. Common Cause in 2019.
Where the court’s conservative bloc has split, it has been on questions of how fast to change the status quo. Roberts ― with his background as a political operative ― favors a slightly slower schedule than the ultras, but in areas of longtime agreement among conservatives, where there is limited concern about harming the court’s legitimacy, and where it is politically advantageous for the Republican Party, he is fine to plow ahead.
The conflict emerged in Dobbs because overturning Roe was both politically disadvantageous to Republicans and potentially harmful to the court’s legitimacy. But on an issue like affirmative action, which, unlike abortion rights, is broadly unpopular, it’s full steam ahead.
Democrats and liberals are now faced with how to confront the court or blunt its decisions. Following the court’s affirmative action decision, Biden stated, “This is not a normal court.” But when asked about proposals by some lawmakers to add seats to the court to counter its conservative drift, he objected.
“If we start the process of trying to expand the court, we’re going to politicize it maybe forever in a way that is not healthy, that you can’t get back,” Biden said.
Whether through court expansion or not, the only way for liberals to confront the court and respond to its decisions is through politics. College admissions officers finding ever more byzantine ways to increase minority enrollment is not the answer. Neither are efforts at creating new legal doctrines ― or trying to use existing conservative ones ― to win in the undemocratic arena of the judiciary.
The court’s political goals are clear. It is finishing the realignment that Reagan never completed. But it is vulnerable because the political majority that created the Reagan realignment no longer exists.
The question for liberals is how to build a political majority big enough to counter it. Trying to revive what is lost through the same old means of bureaucratic policymaking and judicial decisions is not the answer. The business of building a majority through politics is the only way to assert the power of the people over the anti-democratic whims of the justices.
As Abraham Lincoln said when confronting the court’s horrendous Dred Scott decision: “If the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.”
