stick or twist? Conservative Supreme Court justices have a choice

Get FREE US Politics & Policy Updates

we will send you one myFT Daily Digest Latest Email Rounding American politics and policy News every morning.

The author is a former New York Times editorial board member and writer ‘Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Inequitable America’

After Alan Bakke sued the University of California for his dismissal from medical school in 1974, conservatives tried—and failed—for decades to end affirmative action in university admissions. The Supreme Court has repeatedly upheld the use of race to promote diversity. It ended last month, when the court held that considering caste in college admissions is unconstitutional.

The decision, in a pair of lawsuits against Harvard and the University of North Carolina, was a major victory for conservatives, but not the only one. The court also ruled that a Christian web designer could refuse to design a website for a gay wedding. And it gutted President Joe Biden’s student loan forgiveness program. These rulings build on major conservative victories over the past year, most notable of which was a highly unpopular court decision that was overturned Roe v. Wade, This ended nearly half a century of constitutional protection for abortion rights.

All but one of these landmark decisions were decided by a 6–3 vote (6–2 in the Harvard case, due to one abstention). These lopsided decisions reflect the era of a conservative supermajority. These six justices are aggressively reshaping the law – and society – to the detriment of minorities, women, queer people and the poor.

The court of today is a conservative dream five decades in the making. From 1953 to 1969 the Court was a powerful progressive force. Under Chief Justice Earl Warren, it overturned Jim Crow, ordering the desegregation of schools and other public institutions. And it protected the rights of women and poor people.

Richard Nixon arrived at the White House in 1969 vowing to end the liberal Warren Court, and he did. In three years, he appointed four justices and created a conservative majority that continues to this day. The court that Nixon prepared handed the right wing a long series of important victories. It stopped pushing for more school desegregation. It broke the spirit of the Voting Rights Act by invalidating a key provision. and in Citizens United vs. FECIt ruled that corporations had a First Amendment right to spend money on elections.

But to the consternation of many conservatives, the court will not strike down abortion rights or affirmative action. There was always a moderately conservative swing justice — Sandra Day O’Connor or Anthony Kennedy — willing to vote with liberal justices on both of those policies. After Donald Trump’s court appointments, everything changed. Now we have what one commentator has called a YOLO (“you only live once”) court, whose six-member supermajority showed no hesitation in overturning decades of abortion and affirmative action precedents.

The question is what announcements will she make next. Two areas the court could move forward on are affirmative action and abortion. In the former, it is unclear whether the race-neutral principles the court has set for college admissions apply the same way to government and corporate hiring and minority contracting programs. On the latter, lower courts are divided over whether the abortion pill mifepristone should remain available — court watchers believe Supreme Court justices will decide the drug’s fate.

The overwhelming majority wants to keep up the momentum by ending affirmative action and stopping the use of mifepristone in other parts of society. Its decision in the matrimony website case could also signal a further rollback of gay rights. Or the court can do none of these. Some observers point to signs of moderation hidden behind recent rulings: After years of hostility toward the Voting Rights Act, the court handed civil rights advocates a major victory in an Alabama congressional redistricting case.

External forces can also push judges towards greater restraint. One is that the respect for the court has gone down. According to Gallup, only 25 percent of Americans now trust it, a record low. Then there have been recent scandals over unreported gifts from billionaires to Clarence Thomas and Samuel Alito. If Democrats retake the House, they could hold hearings on those gifts, and even consider impeachment. He has already introduced a bill in Congress to impose term limits on judges and increase the number by more than nine. These are long term propositions, but they do make an issue.

The court is at the crossroads. The supermajority can continue its YOLO ways on civil rights, abortion, gay rights and other issues. Or it may take note of the larger and growing popular opposition and the damage to the court’s reputation, and begin to slow down its work.