Portside

The Supreme Court term that began last fall has spanned several epochal upheavals at once: the second peak and wind-down of the coronavirus pandemic, the 2020 Presidential election, and its dramatic aftermath, including the violent mob attempt to block the certification of the outcome. During the term, oral arguments were conducted entirely by telephone, a low-tech option that had the effect of keeping the Justices less visually accessible to the public. Amy Coney Barrett took the late Ruth Bader Ginsburg’s seat, creating a six-Justice conservative majority that seemed to insure losses for liberals for at least a generation. In response to strong outcry from Democrats at that prospect, President Biden created a commission to study possible reforms to the Court, such as adding more Justices to it, and limiting their terms.

But, if the expectation was that the country’s political divisions would be mirrored in starkly split decisions, it mostly was not met. The Court didn’t even attempt to decide the 2020 Presidential election, as Donald Trump wanted it to and as many feared that it would. Instead, the Justices repeatedly defied expectations, with conservatives and liberals together forming majorities in high-profile cases in order to avoid or defer the fighting of deeper wars.

On June 17th, in Fulton v. Philadelphia, the Court ruled unanimously that the city had violated a Catholic foster-care agency’s free exercise of religion by requiring it to work with same-sex couples as potential foster parents. The case was supposed to be a showdown between gay people’s right to be free of discrimination and religious people’s right to discriminate on the basis of their religious beliefs. But an alliance of liberals and conservatives, led by Chief Justice John Roberts, focussed on the particular facts of the case, which plausibly enabled a ruling in favor of the Catholic agency, without going the full distance to a true win for religion and against gay rights. An angry Justice Samuel Alito accused the Court of issuing a too timid non-decision that “might as well be written on the dissolving paper sold in magic shops.”

For the third time, Republicans had asked the Court to strike down the Affordable Care Act as unconstitutional. But, also on June 17th, the Court refused, by a vote of 7–2, with Justices Alito and Neil Gorsuch dissenting. The big issue on which a partisan divide was anticipated was whether the law became unconstitutional when Congress, in 2017, nullified its “individual mandate.” In a decision written by Justice Stephen Breyer, the Court was able to avoid answering entirely—and to avoid invalidating Obamacare—by holding that the eighteen states and two individuals who had brought the suit did not have standing to challenge the law, because they weren’t concretely injured by its enforcement. Justice Alito lamented that “fans of judicial inventiveness will applaud once again,” which was not a compliment.

Last week brought a ruling in the widely followed case of a Pennsylvania high-school cheerleader who was suspended from the team for a year, as punishment for a Snapchat post she made on a weekend, when she wasn’t at school, showing her and a friend giving the finger, and profanely expressing her frustration at not making the varsity team. The Justices decided, 8–1, that, in disciplining the student, the Pennsylvania public-school district had violated her First Amendment right to free speech. The lone dissenter was Justice Clarence Thomas, who has previously argued that “the Constitution does not afford students a right to free speech in public schools.” The other eight Justices signed on to a majority opinion that was uncategorical and vague—all the better for keeping the liberal-conservative coalition on board—saying that schools could discipline students’ off-campus and online speech some of the time, but not on the specific facts in this case, because the cheerleader’s Snap seemed not to have caused much “disruption” at the school.

The Justices again flaunted their unanimity last week by joining an opinion written by Justice Gorsuch, which held that the National Collegiate Athletic Association violates federal antitrust law by restricting compensation for student athletes—in this instance, with rules that restrict education-related benefits from colleges, such as postgraduate scholarships, equipment, and tutoring. The most surprising aspect of the case was a concurring opinion by Justice Brett Kavanaugh, an avid sports fan, who approvingly underscored the decision’s implication that other N.C.A.A. rules that depress wages for student athletes’ labor below competitive levels raise serious questions under antitrust law. As he put it, “Price-fixing labor is price-fixing labor.” The world in which the spirit of amateurism justifies keeping students from making money for playing sports for their colleges now looks likely to unravel. Kavanaugh also noted the racially exploitative effect of suppressing pay for student athletes “who collectively generate billions of dollars in revenues for colleges,” since the athletes, “many of whom are African American and from lower-income backgrounds, end up with little or nothing.”

Finally, the Court will decide this week whether two Arizona voting restrictions violate provisions of the Voting Rights Act of 1965 that protect against racial discrimination. The first requires ballots cast at the wrong precinct to be discarded, and the second makes it a felony for most people to deliver the ballots of others to polling places. The Court agreed to hear the case a month before the 2020 election, and since then many Republican-led states, in the name of preventing fraud and with overt recognition that greater voting access favors Democrats, have passed or introduced more draconian limits on voting. The case has the potential to stymie future legal challenges to those efforts. But the Biden Administration has told the Court that “it does not disagree with” the Trump Administration’s position that the Arizona restrictions are lawful, and so it would not seem excessively partisan for the Court to uphold them. The most telling feature of the decision will not be its outcome but its reasoning, which could reflect a continuing coöperative compromise, or display its fault lines—a fitting capstone to a term in a year marked by fundamental challenges to American democracy.

The Justices presumably understand that, if we fail to channel social conflict into legal means, it will, in part, reflect poorly on their job performance. And if the Court’s decisions lose the public respect that undergirds its power, it may aggravate, or even generate, social conflict. This term, the Justices worked hard at conflict management. At times, they even appeared to be demonstrating how to properly practice politics: reach broad agreement on narrow issues, enhance legitimacy, and avoid coming to partisan blows. As the Court turns to next term’s cases on abortion and gun rights, we’ll see how long its defiance of expectations can last. 

Jeannie Suk Gersen is a contributing writer to The New Yorker and a professor at Harvard Law School.

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