Now, though, the sky finally has fallen for liberals, at least in terms of the big-ticket cases setting the contours of judicial power. The term just ended was the first of a new era — possibly to last 10 years or more — in which the court can be counted on to embrace a narrow view of its own authority — especially vis-a-vis the executive branch — and a skepticism toward its traditional role of protecting individual rights.
Thus, the 5-to-4 decision in the gerrymandering case — the most important decision of the year — surprised few people. It was the most dramatic repudiation of the court’s traditional role in protecting individual rights in recent memory. As Justice Elena Kagan noted in her powerful dissent, “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”
And not just any constitutional violation, but a violation of core democratic rights that underpin basic participation on equal footing in the political system. In past terms, the court repeatedly telegraphed that it was struggling to find judicial limits on the most rank and cynical gerrymandering schemes. Now it purports to have closed the door on that possibility forever, even while acknowledging the schemes’ unconstitutionality. That is a sobering, even brutal, result.
It also augurs retrenchment in other areas involving the reaches of judicial power, most notably regarding unenumerated rights, including abortion.
And yet, the near certainty of conservative majorities on basic questions of judicial power gives way in less-blockbuster cases in which, as this term illustrated, the four liberal justices have several possible ways of snagging a fifth vote.
First, and most important, Chief Justice John G. Roberts Jr. remains highly sensitive to shoring up the public’s confidence in the court and, in particular, to ensuring that it not be seen as a mere organ of the Republican Party. A lot of actors in Washington in the past three years have been assumed, falsely, to be “institutionalists”; Roberts is a shining exception.
Thus, in the census case, Roberts joined the four liberals in the fairly extraordinary gesture of disbelieving the Trump administration’s proffered reasons for including a citizenship question on the 2020 form. It would have been very easy for him to go along with the four conservatives in deferring to the administration’s explanation, as the court did in upholding President Trump’s travel ban.
The immigration case was a paradigm of the cases where Roberts’s vote would be in genuine play: It was high-profile and important politically, yet it presented no really important question of judicial power or constitutional law, so Roberts’s vote did no damage to his overall constitutional vision of judicial modesty.
Second, there is Justice Brett M. Kavanaugh, who voted with the majority this term more than any other justice. (Roberts was second.) Kavanaugh is emerging as a reliable ally of the chief and a more traditional conservative, perhaps driven by a desire to make few waves in the aftermath of his searing confirmation.
A significant story of the term, in fact, was the fairly frequent divergence between Kavanaugh and his fellow Trump appointee, Neil M. Gorsuch. They are not soul mates. In fact, Kavanaugh voted with Kagan as often as with Gorsuch. Gorsuch seems self-consciously to be staking out ground as the jurisprudential heir to Justice Antonin Scalia, including a swashbuckling (if erratic) writing style and a willingness to disparage the court as a whole. Gorsuch also is much closer to Justice Clarence Thomas, ever the renegade, with minimal concern about respecting precedent in constitutional cases.
Like Scalia, Gorsuch has a libertarian streak and a purist, almost literary approach to statutory interpretation. That translates into occasional alliances with the four liberals, as in the “crime of violence” case in the court’s final week, in which Gorsuch authored a clear and perfectly textual statutory interpretation, indifferent (as he should have been) to the practical policy concerns about impact on crime rates that drove Kavanaugh’s dissent.
Finally, there is Kagan, who has emerged as the court’s most savvy tactician, as well as its most talented writer. Kagan adopts the long view, and the yield in individual cases is to pull out at least partial victories. The best example from this term may be her and Justice Stephen G. Breyer’s decision to vote to sustain the display of a 40-foot cross on public land but under a grandfathering principle that the conservatives accepted and did little collateral damage to the establishment clause.
The overall picture is that of a five-person conservative majority that is in likely lock-step on fundamental issues of judicial power and newfangled constitutional rights. But underneath that canopy is a divergence of views on serious, if second-order, matters, such as statutory interpretation. That likely translates into a lot less drama in future Junes, but continued surprises sprinkled over the course of the term.