How Will the Courts Respond to the Rise in Reactionary Laws?

By Emily Hoofnagle, Columnist

Americans consistently regard the Supreme Court as the most trustworthy branch of government. This faith in the judiciary may derive from the perception that the Court is objective, politically neutral, and independent from the partisan warfare plaguing the government today. But those ships of war are now docking on the judiciary’s banks. Since January, in a backlash against Democratic electoral victories at the federal level, Republican state legislatures have been rapidly passing controversial, socially conservative legislation that has liberal legal groups frantically suing the states. Among these challenges are the ACLU’s fight against a restrictive abortion law in Arkansas and Lambda Legal’s challenge against West Virginia’s ban on transgender students in school sports.

A decades-long attempt to politicize the courts from the inside has compounded Democrats’ fears of civil rights restrictions. Since the 2000s, the Federalist Society, a conservative legal organization, has virtually controlled federal judicial appointments made by Republican presidents. Five of the six current conservative Supreme Court justices have ties to the Federalist Society — Chief Justice John Roberts’ affiliation to the group is in dispute. Additionally, all but eight of the 51 Trump appointees to federal courts, many of whom have received unfavorable ratings from the American Bar Association, have connections to the Federalist Society. These newer justices also tend to rule more consistently to the right than Republican judges in the recent past.

While the judiciary was never an impenetrable bulwark against reactionary overreach, the courts typically act as a moderating check against the excesses of partisan lawmakers. But evidence from recent rulings predicts a future of civil rights being chipped away.

The latest federal court decisions suggest a judiciary that is increasingly supportive of restrictive voting access laws but mixed on abortion restrictions. In 2020, most federal court rulings on voting rights favored restrictions, including two decisions from the Supreme Court that allowed limits on mail-in voting in Texas and reversed a lower court decision that eased voting limitations in Alabama. Appeals courts throughout the country are permitting or blocking abortion bans in almost equal numbers, while there are already 61 new abortion restrictions.

It is more difficult to predict how courts will rule on transgender rights. So far, most transgender rights cases have concerned protection from employment discrimination, and most federal courts have been overwhelmingly supportive of protecting such protections for transgender people. Bostock v. Clayton County (2020) cemented the Supreme Court’s backing of the interpretation of Title VII of the Civil Rights Act to include gay and transgender people. However, new challenges to transgender rights concern the right of children to access trans-related medical care and the right of transgender students to participate in school sports. This crackdown may introduce more complicated questions to the courts about how to protect other rights.

Court watchers claim that the Roberts Court exercises judicial restraint — the practice of refraining from using the full force of the Supreme Court to introduce radical interpretations of the Constitution. This restraint means that when the Court rules conservatively, the decision looks less like an extreme strike down of liberal laws and more like an incremental shift to the right. Judicial restraint can be seen in the Court’s rulings on abortion cases. Rather than overturn Roe v. Wade, the Court has used strict interpretations of the “undue burden” doctrine, which requires that abortion laws do not totally obstruct a woman’s ability to get an abortion, to legalize stringent abortion restrictions.

The recent decisions from the newer justices suggest that they embrace judicial restraint. Sixty-four percent of divided cases resulted in liberal rulings, with members of the centrist-conservative flank — Justices Brett Kavanaugh, Amy Coney Barrett, and Roberts — joining the liberal faction. Justice Samuel Alito even accused his conservative colleagues of issuing milquetoast rulings that attempted to defuse political tensions rather than interpret the law.

However, some of the Court’s major rulings muddy the cautious optimism some commentators have already expressed. In a voting rights case, the six conservative justices supported Arizona’s restrictions on voting methods, and in a union case, the Court invalidated a California regulation that allowed labor unions access to workers on state farms. These two rulings reflect the Court’s pro-voting restrictions, anti-union stance.

In its next term, the Supreme Court will hear more controversial cases, including challenges to abortion restrictions and gun rights. While some may hold out hope that the Roberts Court will continue its tradition of judicial restraint, conservative justices on the Court have a clear record of supporting gun rights over gun control. On the upcoming Mississippi abortion case, the Court will likely try at least to weaken the Roe and Casey decisions; of the current conservative justices, almost all have strong anti-abortion stances. In Gonzales v. Carhart (2007), Justices Roberts, Alito, and Clarence Thomas favored banning partial-birth abortions. Thomas has publicly declared that the Court should overrule Roe, and Alito dissented in Planned Parenthood v. Casey, which upheld the legality of abortions. While Neil Gorsuch, Barrett, and Kavanaugh have expressed opposition to Roe, Barrett and Kavanaugh might continue to favor precedent over revolutionary decision-making.

The Supreme Court is not ideologically moderate. While the past year proved that judicial restraint remains a staple of the Roberts Court, this Court will likely rule conservatively on future decisions in a way that shifts the country further to the right.

Featured Image by Ian Hutchinson on Unsplash.

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