Comment: Supreme Court was more divided than it might appear

Aside from a few high-profile cases, the court’s 6-3 split is clear and even the conservative majority is splintered.

By Adam Winkler / Special to The Washington Post

Some Supreme Court watchers would have you believe this was a term of narrow, moderate decisions mostly free of ideological rancor.

Indeed, the court has issued some compromise or near-unanimous rulings: upholding the Affordable Care Act (again), protecting the free speech rights of public-school students and curtailing the ability of the NCAA to limit benefits to student athletes. But although the justices did find a measure of consensus in some high-profile cases, a look just below the surface reveals deep fissures.

Begin with cases on the so-called shadow docket: orders and summary decisions issued by the court after expedited briefing and without oral argument. Although often issued at odd hours of the night and escaping public attention, these decisions resulted in several important rulings on contentious issues, and sparked plenty of ideological animosity and division. In a series of voting rights cases, the court’s majority shot down accommodations provided to voters on account of the pandemic — including curbside voting and extending the deadline for absentee ballots — over impassioned dissents by the liberal justices, who accused their colleagues of disenfranchising voters.

A similar split appeared in death penalty cases on the shadow docket. After a 17-year hiatus, the Trump administration resumed capital executions last summer using a new and controversial protocol — using a single drug, rather than the usual three — that challengers claimed caused extreme pain and suffering. The federal government executed 13 people, with the Republican-appointed majority turning aside every challenge, rarely with any explanation and often over the bitter dissents of the Democratic-appointed justices.

The shadow docket cases not only exposed the rifts among the justices; they also significantly reshaped the law. Historically, the shadow docket is used to grant extraordinary relief in straightforward cases that can be resolved by settled legal doctrine. This term, however, the Court’s majority used what the minority said was a series of “separate opinions and unreasoned orders” to significantly expand religious liberty, overturning covid-inspired limitations on large, in-person religious gatherings. The impact of the Court’s shadow docket rulings was described by a lower court panel of Republican-appointed judges as “a seismic shift in Free Exercise law.”

The shadow docket aside, the Supreme Court’s cases this term featured several significant decisions that demonstrated disunity. In two immigration cases, the Court’s conservative bloc, over the dissent of their liberal colleagues, made it easier to detain and deport noncitizens. Another 6-3 decision overturned a California law allowing unions limited access to farms to organize otherwise hard-to-reach migrant laborers, prompting the dissenters to warn of the consequences for a variety of health and safety laws that require temporary access to private property.

As the term wound down, the Court also issued 6-3 decisions upholding Arizona’s voter restrictions and striking down California’s law requiring charities to disclose their major donors. The liberal justices were again left to issue forceful dissents, which accused the majority of allowing racial discrimination in voting and needlessly calling into question basic campaign finance disclosure laws.

Other cases were unanimous in name only, masking stark disagreements. Although officially 9-0, the Court’s decision to limit the authority of police to enter a home in hot pursuit of a suspect led Chief Justice John Roberts and Justice Samuel Alito, in a separate concurrence that reads like a dissent, to castigate the majority decision as “absurd and dangerous.” While Roberts and Alito agreed the police search in this case was unconstitutional, they objected that the Court had placed too many barriers in the way of police chasing down criminal suspects.

Perhaps most notably, this term revealed new ideological divides among the conservatives themselves. Whereas Alito, Justice Clarence Thomas, and Justice Neil Gorsuch often urged the court to drastically and rapidly shift the law in a conservative direction, Roberts and Justice Brett Kavanaugh appeared to want to move at a more incremental pace. (It’s too early to know where Barrett fits in.)

This was apparent in one of the biggest cases of the term, involving a Catholic adoption agency that refused on religious grounds to place children in LGBTQ families. The justices unanimously sided with the agency, but on narrow, fact-specific grounds. In a spirited separate opinion more than five times as long as the majority opinion, Alito, joined by Thomas and Gorsuch, complained: “Those who count on this Court to stand up for the First Amendment have every right to be disappointed; as am I.”

To the extent there was any moderation or ideological consensus among the justices, it isn’t likely to last long anyway. The justices have agreed to hear a number of contentious, highly partisan issues next term, which begins in October. With the conservative majority poised to cut back abortion rights and expand individuals’ ability to carry guns on the streets, don’t be surprised next June if talk of surprising compromises has vanished and observers once again lament the justices’ deep, irredeemable divisions.

Adam Winkler is a professor at UCLA School of Law, where he teaches legal ethics and other subjects.

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