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July 26, 2021

News West

West Coast News Network

Supreme Court under Roberts moves right this year

The Supreme Court ended its term this week just as predicted when the year began, with its six conservatives handing down rulings that favored religious liberty, property rights and Republican-sponsored election laws.

But in between, the justices spent most of the year playing the role of diligent lawyers trying to resolve cases with reasonable rulings that broke no new ground. When possible, they avoided controversy.

It reflects the two faces of the court led by Chief Justice John G. Roberts Jr. for the past 16 years. Most often, he has sought to bring the court together with consensus rulings. However, on matters involving race, civil rights or elections, he has pushed the law sharply to the right.

Roberts has long preferred crafting narrowly written rulings as a way to forge consensus. It’s usually better, he has said, to have a unanimous ruling on a narrow point, rather than draft broad decisions that garner only a 5-4 or 6-3 split. Roberts has also used his tenure as the court chief to try to keep it out the partisan wars that divide Washington.

In this term, a large majority of the cases — 39 of 65 — were decided by a 9-0 or 8-1 vote. They included four wins for the government over immigrants, defeats for Ford Motor Co. seeking to limit lawsuits, and a win for a California motorist who objected to a police officer following him home and into his garage.

The NCAA appealed seeking a shield from antitrust claims brought by college athletes and lost 9-0.

In a Pennsylvania case, school officials asked whether they could discipline students for nasty, vulgar or bullying postings on social media. Probably not, the justices said in a 8-1 decision. They ruled for a disappointed cheerleader who had been suspended for a Snapchat post that included four-letter words, but did not decide whether a bully deserved free-speech protection as well.

But this year, as in the past, Roberts has also been willing to hand down strongly conservative rulings that divide the court, particularly on issues related to political power.

One key question this year was elections, particularly after President Trump lost in 2020 and Democrats took control of the Senate as well as the House. Several GOP-led states have since moved to alter state voting laws. They say they need to prevent fraud, but many experts view the measures as attempts to discourage people of color from voting in order to hurt the Democratic Party.

Civil rights leaders challenged some of these state laws under the Voting Rights Act.

In 1982, a bipartisan Congress had amended the law to prohibit not just intentionally discriminatory rules, but also any “standard, practice or procedure … which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” As a young lawyer in the Reagan administration, Roberts argued against this change, but Reagan signed it into law.

Citing this provision, voting rights advocates argued that even small changes in voting rules should be blocked if they disproportionately affected Black, Latino or Native American voters.

The court had agreed to decide an Arizona case which for the first time would require a ruling on how to apply this part of the Voting Rights Act.

Roberts had a choice. He could have sought a consensus ruling by adopting a middle-ground position.

Instead, he assigned the opinion to Justice Samuel A. Alito Jr. who rivals Justice Clarence Thomas as the court’s most conservative justice. And predictably, his opinion interpreted the civil rights measure as setting a high bar for plaintiffs .

“Arizona law generally makes it very easy to vote,” he began in Brnovich v. DNC.

The Democratic National Committee had sued to challenge the state’s strict enforcement of an “out of precinct” rule that calls for discarding ballots cast in the wrong precinct. Because of shifting precinct boundaries, Arizona discarded 10 times more ballots than any other state. And Black and Latino voters were more than twice as likely to have their ballots canceled entirely, including their votes for candidates running statewide, such as the governor, a U.S. senator or the president, where a voter’s precinct did not matter.

Alito discounted the disparity and said the overall impact was “modest.” Moreover, voting remained “equally open” to all because these residents could have voted by mail.

His opinion will also make it harder for the Justice Department to prevail in its lawsuit against Georgia’s new voting restrictions. Perhaps anticipating the court’s ruling in the Arizona case, Biden administration lawyers did not contend Georgia’s law would have the effect of discriminating against Black voters. Instead, they argued the legislature acted with a discriminatory purpose to make it harder for Black residents to vote.

Alito gave Georgia a good defense. “Partisan motives are not the same as racial motives,” he wrote. Under this notion, Republicans in Arizona, like those in Georgia, were not guilty of racial discrimination if they were seeking to disadvantage Democrats who happen to be Black.

Of course, the ruling was not a divisive 5-4 split, but a divisive 6-3 split. Justice Amy Coney Barrett, who had replaced Justice Ruth Bader Ginsburg in October, voted with the majority, although her presence appeared to make little difference in the outcomes this term.

None of the major cases heard this term appeared to turn on her vote. However, the tenor this year was different.

Last year, the liberal bloc had several major victories. They included extending anti-discrimination protections to LGBTQ employees, blocking Trump’s planned repeal of the DACA program for young immigrants, striking down a Louisiana abortion law and rejecting Trump’s bid to shield himself and his tax returns from a New York grand jury.

This term the liberals had little cheer, except perhaps when the court did little or nothing.

After November’s election, the justices stood back and turned away all the appeals from Republicans and Trump allies seeking to overturn President Biden’s victory.

At the same time, the justices took up a Texas lawsuit backed by Trump that threatened Obamacare. Some on the left feared Barrett could cast a key vote to dismantle the health care law. But the justices disposed of the case, ruling the plaintiffs had no standing to complain about an insurance “mandate” whose tax penalty had been reduced to zero by a Republican-led Congress.

The term’s major culture wars clash ended with a unanimous ruling in favor of the Catholic Social Services and its claim of religious liberty. On the losing side was the city of Philadelphia and its ban on discrimination based on sexual orientation. Roberts wrote a narrow opinion that turned on a clause in the city’s contracting rules.

It did not, however, settle the dispute over whether conservative Christians may invoke their religious views as grounds for exempting them from state and federal civil rights laws. That will have to be decided in a future case.

Next term figures to test whether the Roberts and the court are ready to make major changes in the law or stick with a more centrist course. The justices are due to hear cases that challenge the right to abortion, the limits on gun rights and most likely, affirmative action in college admissions.