The just completed Supreme Court term will come to be regarded as the beginning of a new era in constitutional history: a time of a very activist Court that aggressively follows the conservative political agenda. This term was the most conservative since October 1935, when the Supreme Court repeatedly declared unconstitutional key New Deal laws. The 2017–2018 term was a year filled with cases of unusual importance, and the conservative position prevailed in almost every case.
One measure of this term’s conservatism is found by looking at the 5–4 decisions. There were 19 5–4 rulings out of 63 decisions. Justice Anthony Kennedy voted with Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch in 14 of them. He voted with the liberal justices—Ruth Bader Ginsburg, Stephen Breyer, Sonya Sotomayor, and Elena Kagan—zero times. A year ago, in the ideologically divided cases, Kennedy was with the liberals 57 percent of the time. Two years ago, Kennedy was the key vote to uphold the University of Texas’s affirmative action program and to strike down key provisions of Texas’s restrictive abortion law.
Now, there is every reason to believe that Kennedy’s replacement will be in the mold of Neil Gorsuch: young and very far to the right. All of the names on the Trump list would be more conservative than Kennedy has been over the past three decades. In that way, this term, where Kennedy always voted with the conservatives, is the harbinger of what is to come.
What explains the decisions of October term 2017 is not any principle like judicial restraint or originalism, but simply the conservative values of the majority of the justices. The justices were adhering to the vision of the Republican platform. As Justice Kagan expressed in her powerful dissent in Janus v. American Federation, where the Court overruled a 40-year-old precedent and held that non-union members cannot be forced to pay the share of the union dues that support collective bargaining, the Court’s decision was rooted in neither precedent nor sense. The Court ruled for Janus “because it wanted to.”
The last two weeks of June, as case after case came down on the conservative side, felt devastating in terms of the consequences for the law and for people’s lives. But Kennedy’s retirement means that this type of conservative judicial activism will be here for a long time. Clarence Thomas is the oldest of the conservative justices at age 70. Samuel Alito is 68; John Roberts is 63; and Neil Gorsuch is 50. The new justice surely will be in his or her 40s or early 50s. Absent unforeseen circumstances, these five justices will be together for another 10 to 20 years.
The eras of constitutional law
There are clear eras of constitutional history on the Supreme Court. From the 1880s through 1936, a very conservative Court declared unconstitutional more than 200 federal, state, and local laws that were enacted to protect workers and consumers. This period is referred to as the Lochner era, taking its name from a 1905 Supreme Court decision (Lochner v. New York) that declared unconstitutional a state law that had limited the number of hours bakers could work each week. The Court struck down the first federal law limiting the use of child labor law, minimum-wage laws, statutes designed to protect the ability to unionize, and countless more. During Franklin Roosevelt’s first term, the Court repeatedly declared unconstitutional New Deal legislation meant to stimulate the economy and protect people from the ravages of the Depression.
In 1937, the Court dramatically shifted course. Initially it was because Justice Owen Roberts switched from voting to strike down federal and state economic legislation to upholding them. Soon after, the conservative justices, who all were over 70 years old, began leaving the bench to be replaced by Roosevelt appointees. From 1937 to 1969, a majority of the justices were appointed by Democratic presidents.
Chief Justice Earl Warren
In the initial years of this era, the Court was very deferential to the federal government. The justices had lived through the Lochner era of aggressive judicial activism and the lesson they took from it was the need for the Supreme Court to be more passive and deferential to the government. This is reflected in cases like Korematsu v. United States, where the Court upheld the constitutionality of the evacuation of Japanese Americans from the West coast, and the many cases where the Court allowed the government to take actions against communists or suspected communists.
This changed when Earl Warren joined the Court as chief justice in 1953 and a time of progressive activism began with Brown v. Board of Education. The liberal Warren Court really emerged in 1962, when Felix Frankfurter was replaced by Arthur Goldberg. From then until 1969, there always were at least five liberal justices and they did much of what the Warren Court is most remembered for: expanding the rights of criminal defendants, limiting the presence of religion in government, applying the Bill of Rights to the states, and ending malapportionment.
Richard Nixon got to pick four justices in the first two years of his presidency, between 1969 and 1971. This ended the liberal era and the Court moved sharply to the right. I think we will come to see that era lasting from 1969 to 2017. From 1969 until Justice Scalia’s death in February 2016, there always were at least five and sometimes as many as eight justices appointed by Republican presidents. But some of these appointees—like John Paul Stevens and David Souter—turned out to vote with liberals more than conservatives. Others, like Lewis Powell, Sandra Day O’Connor, and Anthony Kennedy sometimes would vote with the liberals.
Overall, the Court came to conservative results more often than liberal ones, but there were notable exceptions, such as the protection of abortion rights, the allowance of limited affirmative action programs, and the safeguarding of rights for gays and lesbians, including for marriage equality.
But this era is now over. No longer is there a Stevens or Souter, let alone a Powell or O’Connor or Kennedy to join the liberals. Instead of Powell or O’Connor or Kennedy being the “median justice” ideologically, it is John Roberts who is the ideological middle of the Court. Roberts is much more conservative than Kennedy on the most high-profile and controversial issues. The chief justice wrote a vehement dissent from the Supreme Court decision in 2015, Obergefell v. Hodges, which declared unconstitutional state laws prohibiting same-sex marriage. It is the only dissent that he has read from the bench since joining the Court in 2005. Roberts has voted to uphold every regulation of abortion that has come before him. He is emphatic that all forms of affirmative action are unconstitutional.
So it is important to look at October term 2017 not just as a devastating term in itself, but for what it tells us about what is to come.
Because they had five votes
The most significant cases of the term reflect a Court following the conservative political agenda, regardless of precedent or the usual conservative desire to adhere to the original understanding of the Constitution. Four cases most reflect this; three received a great deal of publicity, one deserved much more attention than it received.
Janus v. American Federation. The Court overturned a 41-year-old precedent and held that public employees can no longer be required to pay the “fair share” of union dues that go to support collective bargaining. In 1977, in Abood v. Detroit Board of Education, the Supreme Court reaffirmed that no one can be forced to join a public employees’ union. But the Court held that non-union members can be required to pay the share of the union dues that support the collective-bargaining activities of the union. Non-union members benefit from the union in terms of their wages, their hours, and their working conditions. The Court explained that they should not be able to be free riders and benefit without paying their “fair share.”
But the Court also held that non-union members do not need to pay the part of the dues that support the union’s political activities. The Court explained that it would be impermissible compelled speech in violation of the First Amendment to force non-union members to support political activities with which they disagree.
Both government entities and unions have relied on this ruling for decades in entering into thousands of contracts governing the workplace. Abood also reflects democratic principles: a majority of the employees in the workplace had voted to unionize and collecting “fair share” was important to effectuate the employees’ decision.
Over the last decade, the five conservative justices on the Court—Roberts, Scalia, Kennedy, Thomas, and Alito—sharply criticized Abood and seemed ready to overrule it. The Court appeared poised to do so in Friedrichs v. California Teachers Association in 2016, but Scalia died before the decision was released. The Court announced that it was divided 4–4 on the question of whether to overrule Abood. Once the Republican leader in the Senate, Kentucky’s Mitch McConnell, announced he wouldn’t allow President Obama’s nomination of Judge Merrick Garland to succeed Scalia to come to a vote, it was clear that the ultimate resolution was going to depend on the outcome of the November 2016 election.
Union activists and supporters rally against the Janus v. AFSCME case in Foley Square in Manhattan on June 27, 2018.
Predictably, with Gorsuch on the bench, the Court had five votes to overrule Abood. This is going to be a huge blow to public employee unions in the 22 states that do not have right-to-work laws. The Court has now made right-to-work a constitutional requirement. It will mean a significant decrease in union revenue and union members.
The decision belies any pretense of conservative judicial restraint, as the conservative justices struck down countless state and local laws and contracts based on them. Nor will this be the Court’s last attack on labor. Soon the Court will consider whether Janus applies to private-sector unions and on the horizon is an even more profound question: Is the exclusive representation that is at the core of the National Labor Relations Act unconstitutional because it restricts the ability of individuals to bargain and negotiate for themselves?
National Institute of Family and Life Advocates v. Becerra. The Court’s decision in this case opens the door to challenges to countless laws that require disclosure of accurate information to patients, consumers, and others. It invalidates a law that sought to ensure that pregnant women in the state received important information about their options. It is a decision hard to understand except as a reflection of the conservative justices’ hostility to abortion rights.
The case involved a California statute, the Reproductive FACT Act, which was meant to deal with the problem of more than 200 crisis pregnancy centers in the state that are affiliated with religions and that hinder the ability of California women to receive accurate information about their reproductive rights and to exercise those rights. The legislative history explains that crisis pregnancy centers “pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions” in order to fulfill their goal of “interfer[ing] with women’s ability to be fully informed and exercise their reproductive rights.” The Legislature found that Crisis Pregnancy Centers, which include both unlicensed and licensed clinics, employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”
The context for this law matters. The preamble of the FACT Act explains that the act’s purpose is to ensure that “[a]ll California women, regardless of income … have access to reproductive health services.” More than 700,000 California women become pregnant each year, the preamble states, and that one-half of these pregnancies are unintended. The crisis pregnancy centers have been known to spread false medical information and use scare tactics to dissuade their clients from seeking abortions. For instance, centers have falsely told pregnant women that their chances of getting breast cancer increase after an abortion. They have also inaccurately warned clients that abortions are high-risk procedures that could well result in infection and death.
The statute does nothing other than require that facilities post a notice to provide accurate information to patients. The law says that licensed health-care facilities must post or distribute a notice that states, “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].” An unlicensed facility also must disseminate a notice to all clients acknowledging that it is not licensed as a medical facility by the state of California.
There is no requirement that these facilities provide contraception information or abortion referrals. The law is just to make sure that women know the services that the State of California makes available and whether the facility is unlicensed.
Nonetheless, in a 5–4 decision, split along ideological lines, the Court reversed the Ninth Circuit and held that a preliminary injunction against the law taking effect should have been granted on the grounds that the law likely violates the First Amendment. Justice Thomas wrote the opinion for the Court, joined by Roberts, Kennedy, Alito, and Gorsuch.
The Court said that the California law was compelled speech in violation of the First Amendment. The decision stressed that the law regulated the content of speech, mandating specific disclosures. The Court of Appeals for the Ninth Circuit had stressed that professionals, such as doctors, often have to make disclosures to patients. But the Supreme Court said that there are no special rules under the First Amendment giving the government more latitude to regulate professional speech. The Court concluded that the First Amendment was violated even by requiring that unlicensed facilities disclose that they were unlicensed to their patients.
The decision is enormously troubling on many levels. The Court gave great weight to the minimal burden placed on the facilities by having to post a notice on their walls, but gave little weight to the state’s important interest in making sure that women are provided with accurate information. In terms of freedom of speech, the Court simply favored the right of the clinics to not speak over the right of women to receive vital information.
The Court’s conclusion is inconsistent with the many areas where health-care professionals are routinely required to inform patients of the range of treatment options available to them and of possible side effects to medical procedures. In fact, in the abortion context, the Supreme Court previously has upheld laws that require that women be provided accurate information concerning the fetus. These were laws meant to discourage abortion. In that context, the Supreme Court was untroubled about compelling the speech of health professionals.
The greatest effect of the decision is going to be outside the abortion context. Businesses that sell products and services are frequently required to provide information to consumers, ranging from the disclosure of calories in fast-food restaurants to the risks from tobacco and alcohol. All of these seem vulnerable to challenge because all are content-based and all are compelling speech. As Breyer pointed out in dissent, the Court’s opinion offers no limiting principle as to why these laws don’t run afoul of the same First Amendment principles as California’s FACT Act.
Trump v. Hawaii. President Trump initially promulgated the travel ban by executive order on January 27, 2017. It suspended immigration from seven countries for a period of 90 days and suspended the refugee program for a period of 120 days. It had an exception to those who were from minority religions in these countries. The seven countries shared three things in common: All were over 90 percent Muslim; Donald Trump had no economic investments in any of them; and none ever had been linked to terrorist activity in the United States.
After a federal court of appeals invalidated the travel ban, Trump issued a new executive order: It suspended immigration from six countries (Iraq was taken off the list) for 90 days and the refugee program for 120 days. It did not have an exception for those who were of minority religions in these countries. After two federal courts of appeals declared this unconstitutional, the Supreme Court granted review. But the time periods expired before the Court could hear the case and the matter was dismissed as moot.
Trump then issued a third version of the travel ban by executive proclamation. This suspended immigration from eight countries: North Korea, Venezuela, and Chad were added to the list, with the probable intent of making it seem that the proclamation was not a Muslim ban. The Ninth Circuit struck this down as violating a 1965 federal law that prohibits discrimination in issuing visas based on race, religion, sex, national origin, or country of residence. The Court of Appeals for the Fourth Circuit invalidated the travel ban as impermissibly discriminating on the basis of religion.
By a 5–4 decision along ideological lines, the Supreme Court reversed these courts and upheld the travel ban. Writing for the Court, Roberts said that the 1965 law prohibiting discrimination in issuing visas was not controlling because of an earlier federal law that allows the president to suspend entry of “immigrants or nonimmigrants.” It is strange that an earlier law is seen as superseding a later one, especially when the purpose of the 1965 statute was to stop the federal government from having immigration quotas by country, which tragically kept many fleeing the Holocaust from entering the United States.
Supreme Court Justice Neil Gorsuch, left, stands with Chief Justice John Roberts outside the court on June 15, 2017.
But the greatest significance of the case is that the Court said there needs to be great judicial deference to the president in immigration policies, and that his actions will be upheld so long as they are supported by a conceivable legitimate purpose. In this way, the Court made irrelevant all of the statements by Trump and his advisers that expressed their desire for, as Trump had said, a “total and complete shutdown of Muslims entering the United States.” The government’s claim of a national security justification is all that mattered, even in the absence of any evidence linking the designated countries to terrorist activity.
The dissenting justices in the travel ban case rightly analogized the majority’s ruling to the Supreme Court’s infamous 1944 decision in Korematsu v. United States, which upheld the evacuation and confinement of Japanese Americans during World War II. The analogy is apt. Both policies were based on prejudice. Neither had any basis in terms of national security. There was no evidence linking Japanese Americans to any threat to the country then, nor any linking immigrants from the designated countries to terrorism today.
Most of all, each of these cases was based on the false assumption that the danger a person poses can be determined by his or her nationality or country of residence. In our country, a person’s dangerousness never should be determined based on his or her race or ethnicity or national origin or country of residence. Ignoring that, the Supreme Court created a precedent that gives the president vast powers to discriminate.
In dissenting from Korematsu in 1944, Justice Robert Jackson said that the precedent the decision set would lie like a loaded gun waiting to be used by some future president. Trump v. Hawaii poses the same kind of threat: In its extreme deference to the president in the face of overwhelming evidence of a policy based on animus to Muslims, it is yet another loaded gun.
Epic Systems v. Lewis. In another 5–4 decision, the Court ruled that an employer may lawfully require its employees to agree, as a condition of employment, to take all employment-related disputes to arbitration on an individual basis and to waive their right to participate in a class-action suit or class arbitration.
The case involved an effort by workers to file a class action suit against an employer for violating the federal minimum wage law. The employer sought to dismiss the case because it had insisted as a condition of employment that the employees waive their ability to go to court or be part of a class action; any dispute had to be resolved out of court in an arbitration.
This should be an easy case. The National Labor Relations Act, a federal law adopted in 1935 and upheld by the Supreme Court in 1937, protects a right for employees to engage in “concerted activities for the purpose of … mutual aid or protection.” As Justice Ginsburg explained in her dissent, “By joining hands in litigation, workers can spread the costs of litigation and reduce the risk of employer retaliation.”
But Gorsuch, joined by the conservative justices—Roberts, Kennedy, Thomas, and Alito—rejected this right and said that the arbitration clause in the employment contract that employers insisted on had to be enforced. Workers, the Court continued, could not go to court or even bring a class action to an arbitration proceeding. The Supreme Court invoked the Federal Arbitration Act, a law adopted in 1925, which provides that arbitration clauses in contracts shall be enforced.
There are many serious flaws with the majority’s reasoning. To begin with, the Federal Arbitration Act never was meant to apply to employment contracts. In fact, the law explicitly states “but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”
Moreover, there is a well-established principle of statutory interpretation that says that a later statute should be seen as modifying an earlier one. Yet, the Court gave the 1925 federal law precedence over one adopted in 1935. There also is a principle that great deference should be given to the statutory interpretation of federal agencies. For 75 years, the National Labor Relations Board always said that the right to engage in concerted activity includes a right to be part of class-action suits and that employers cannot insist on arbitration as a condition for employment.
Gorsuch’s majority opinion began with a false premise. In his first sentence, he asked, “Should employers and employees be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?” But the reality is that there is not anything like a mutual agreement; employers dictate as a condition for employment that employees give up their right to sue.
Why does this matter? The ability to bring a class action is especially crucial when a large number of people each lose a relatively small amount of money. This is exactly what occurs when there is wage theft. As Justice Ginsburg noted, “Violations of minimum-wage and overtime laws are widespread. … One study estimated that in Chicago, Los Angeles, and New York City alone, low-wage workers lose nearly $3 billion in legally owed wages each year.”
Individual employees are unlikely to bring individual claims to arbitration. Without the ability to bring class-action suits, employees have little likelihood of recourse. Employers know that, and some will be more emboldened to rip off their employees.
This is just the latest in a series of rulings in which the Court, all in 5–4 decisions, has held that arbitration clauses in contracts should be enforced even though they are dictated by merchants, employers, and physicians, often in the small print of form contracts. The effect is to keep people from ever having their day in court.
Conservative Decisions Presaging Decisions Even More Conservative
In two of the most high-profile decisions of the term, the Court gave conservatives narrow victories. But replacing Justice Kennedy eliminates any possibility of a liberal victory on these issue in the future.
Masterpiece Cakeshop v. Colorado Civil Rights Commission. The Court ruled in favor of a baker who refused to design and bake a cake for a gay couple’s wedding celebration. The ruling was narrow, but overturned a lower court decision in favor of the gay couple. The Court said that it violates free exercise of religion for the government to express animus based on religion. The Court said, “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
It is important to look carefully at what the Court found to be sufficient evidence of hostility to religion. One commissioner at the meeting said, “Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’” The Court especially focused on a statement made by a commissioner at a subsequent meeting: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination.” The Court also found hostility to religion because the commission had allowed bakers in other cases to refuse to bake cakes with messages the bakers found offensive.
That’s all the Court pointed to as evidence of religious animus. The first statement was just a statement of the law: In Colorado, businesses cannot discriminate based on race or religion or sex or sexual orientation. The second statement was factually true: Terrible things have been justified in the name of religion. And the other cases where bakers prevailed in the Colorado Civil Rights Commission are irrelevant because none of these involved bakers who were violating the Colorado statute by discriminating based on race or religion or sex or sexual orientation.
It is stunningly inconsistent and hypocritical that these mild statements were taken as establishing religious discrimination and Trump’s repeated calls of a Muslim ban were not.
The Court thus ruled in favor of Masterpiece Cakeshop, but left open the larger question of whether it violates free exercise of religion or freedom of speech to require that a business owner provide services that would violate his or her religious beliefs. But with Kennedy gone and a staunch conservative replacing him, I don’t think there is any doubt that the Court will protect the ability of business owners to discriminate.
Gill v. Whitford. Partisan gerrymandering—where the political party controlling the legislature draws election districts to maximize seats for that party—is nothing new. In fact, the practice is named for Massachusetts Governor Elbridge Gerry who in 1812 signed a bill that redrew the state Senate districts to benefit his Democratic-Republican Party. But what has changed are the sophisticated computer programs that make partisan gerrymandering far more effective than ever before. The political party that controls the legislature now can draw election districts to gain a disproportionate number of safe seats for itself.
Partisan gerrymandering is a great threat to our democratic process. No longer do voters choose their elected officials; elected officials now choose their voters. Partisan gerrymandering greatly dilutes the political influence of those in the minority. A party can get a slight majority of the votes for the state legislature and give itself a super-majority of the seats.
In Gill v. Whitford, a three-judge federal district court found that the partisan gerrymandering of the Wisconsin legislature denied equal protection. The Supreme Court, however, ruled unanimously that the plaintiffs in Gill v. Whitford lacked standing because none had shown that he or she was personally injured. The plaintiffs were voters who objected to the partisan gerrymandering in their state. But the Court said that to have standing, a plaintiff would need to allege that he or she was in a district that was gerrymandered.
The Court left open the possibility that a plaintiff with standing might challenge Wisconsin’s gerrymandering. But with Kennedy gone, it is impossible to see how challenges to partisan gerrymandering will find a fifth vote.
WHAT WILL IT MEAN to have five very conservative justices whose jurisprudence is based on the Republican platform? I have no doubt that there will be five votes to overrule Roe v. Wade, five votes to declare all forms of affirmative action unconstitutional, five votes to eliminate the exclusionary rule as a remedy when police violate the Constitution.
We have seen the beginning of a new era of right-wing judicial activism on the Court, and it is going to be with us for years to come.