Opinion | Don't be fooled: This is not a moderate Supreme Court - The Washington Post

Leah Litman is an assistant professor of law at the University of Michigan Law School. Melissa Murray is a professor of law at the New York University School of Law. They co-host the “Strict Scrutiny” podcast.

This Supreme Court term was significant mostly because of what the court did not do: The newly constituted 6-3 conservative supermajority did not use every case to openly and dramatically move the law rightward. Rather, in several important cases — including those involving the fate of the Affordable Care Act and the tension between religious liberty and gay rights — the court managed to resolve matters on seemingly narrow grounds and with broad majorities that transcended ideological differences.

But to call this term a model of judicial restraint — or even nonpartisanship — would be misleading. This is not a moderate or apolitical court. It is a reliably conservative court that, on occasion, chooses to act incrementally.

Characterizing this term as moderate would also overlook the profound impact of the court’s final two decisions, a pair of 6-to-3 rulings — one that hobbled what remains of the Voting Rights Act and another that lays a foundation for a seismic shift in campaign finance rules.

In some cases where there was cross-ideological agreement, the court achieved that result by deciding very little. In its 8-to-1 ruling on the case of the cheerleader disciplined for vulgar speech, the court declined to impose a broad rule letting schools regulate students’ off-campus speech in all circumstances. But meaningfully, the court did not say off-campus speech was never subject to oversight by school authorities. As its reasoning suggests, cross-ideological agreement is possible, as long as you agree to not say very much.

Technical legal doctrines also gave the court a way to appear less ideological. In the Affordable Care Act case, the court, voting 7 to 2, turned aside a third challenge to the law on the narrow grounds that the states and private parties challenging the law didn’t have standing to sue because they couldn’t show they were injured by the unenforceable requirement to obtain insurance.

Cross-ideological agreement also prevailed in the case involving whether Catholic Social Services could decline to certify same-safe couples as foster parents. In Fulton v. City of Philadelphia, the court ruled unanimously in favor of Catholic Social Services’ challenge to Philadelphia’s policy requiring city contractors not to discriminate on the basis of race, sex or sexual orientation. But the court’s fragile unanimity only warded off the more aggressive approach to religious liberty favored by some of the court’s Republican-appointed justices.

Much to the chagrin of some of the court’s most stalwart conservatives, the decision avoided overruling a major religious liberty precedent. But even in its so-called restraint, the majority changed the law. By invalidating a nondiscrimination requirement on the ground that it includes some system for exercising discretion — even if that discretion is never exercised — the court’s ruling opens the door to religious liberty challenges to a wide range of laws and policies.

In lower-profile cases, the court behaved in more obviously ideological ways — with conservatives banding together to aggressively move the law sharply to the right. In a major labor case that continues the conservatives’ hostility toward unions and worker organizing, the six conservative justices voted to invalidate a California regulation that facilitated agricultural workers’ ability to unionize.

The ruling could affect other private-sector unions’ ability to enter employers’ property if organizers cannot easily contact workers off-site. But the potential impact goes far beyond labor organizing. The court concluded that a California law that allowed union organizers to enter a workplace for a few hours a day constituted a taking of private property. This finding could call into question all manner of laws and regulations that require businesses to allow certain people onto their property — including for health and safety inspections, for child welfare or to prevent discrimination in the provision of goods and services.

In another case that will insulate corporations from regulation, five conservative justices held that a major credit reporting agency could not be sued for wrongly labeling its customers as possible terrorists or drug traffickers on a Treasury Department watch list. The decision accelerates a trend toward blocking the courthouse doors to persons seeking to enforce federal consumer protection laws.

As the term reached its conclusion, the muscular conservatism of the Roberts court was in full flower. In a major Voting Rights Act challenge, the justices sharply divided along ideological lines, weakening what remained of the act’s protections for our multiracial democracy. Likewise, in a challenge to a California public disclosure law, the court determined that states cannot require charities to report the identity of their donors to state authorities — a decision that will likely have sweeping repercussions for state and federal laws that require disclosure of campaign donations.

Instead of viewing this term as a triumph of restraint and moderation, we should see it for what it was — table-setting for the term to come. When the court resumes its work in October, it will have even more opportunities to reshape the landscape of American law, including on abortion rights and gun regulation. The question is whether the justices will do so explicitly, or in this term’s more slow and subtle fashion.

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Opinion | Don't be fooled: This is not a moderate Supreme Court - The Washington Post
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