Justice Neil Gorsuch‘s role in his first full term on the Supreme Court offers a striking illustration of the difference a single justice can make, and why both sides are gearing up for a titanic fight over replacing retiring Justice Anthony Kennedy.
The term that roared to its finish Wednesday — before it was overshadowed by Kennedy’s announcement of his retirement — was a triumphal one for conservatives. In Kennedy’s last term and the first for Gorsuch, Kennedy’s former law clerk, both justices were part of 5-4 conservative majorities to uphold President Donald Trump‘s travel ban, deal labor unions a major financial setback, affirm Ohio’s aggressive purge of its voter rolls and prohibit millions of workers from banding together to complain about pay.
Those cases probably all would have come out differently — if they even had made their way to the Supreme Court — had the seat Gorsuch holds instead been filled by Judge Merrick Garland, whom President Barack Obama nominated after Justice Antonin Scalia’s death in 2016.
Attorney General Jeff Sessions was quick to trumpet the decision in the union case because it was one of four where his Justice Department flipped the position taken in the Obama administration and won. “The favorable Supreme Court decisions in all four cases reflect that we took the proper course of action. The decisions speak for themselves,” Sessions said.
There were 14 cases in all in which conservatives prevailed and liberals were in dissent. By contrast, the liberal justices were in the majority in just three ideologically divided cases in which one conservative joined them. The most significant of those was a digital-age privacy decision saying that police generally need a warrant for cellphone company records showing where a phone was used.
Beyond the votes in individual cases, the makeup of the court in part determines the kind of cases people push to get in front of the justices. The case that ended labor unions ability in nearly two dozen states to collect fees from government workers they represent is a prime example.
When Antonin Scalia died, the remaining eight justices divided 4-4 in an earlier case about the same issue. After Trump won election, anti-union groups pressed to get a new case to the high court quickly.
Abortion foes could follow a similar path with Kennedy’s successor on a court that could be more willing to sustain abortion restrictions.
“Conservative legal activists have jumped on the opportunity by bringing cases that continue to push the law in a conservative direction,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center. “If we get a justice even more reliably conservative than Justice Kennedy, I’d expect that to be an even more extreme trend.”
Not every Supreme Court case — or even most cases — fall along those lines, including the two cases this term that are likely to lead to less money in people’s pockets and more in state coffers.
In one, the court opened the door to legalized betting on sporting events across the country. Delaware and New Jersey were the first states to start taking bets and several more states plan to follow suit to try to capture some of the $150 billion that Americans have been wagering illegally each year, according to some estimates.
The justices also made it possible for states to force more people to pay sales tax when they make online purchases. The court overruled a pair of decades-old decisions that states said cost them billions of dollars in lost revenue annually.
As the justices look ahead to next term, the 30 cases already set for arguments generally do not have the same high profile as this term’s biggest ones. Among the notable cases are appeals by death row inmates in Alabama and Missouri, a case about the rights of immigrants in detention and a class action involving iPhone apps.
The court still could return to two big issues it considered but ultimately did not decide this term — political gerrymandering and religious objections to LGBT rights under anti-discrimination laws.
On both counts, the liberal justices saw Kennedy as a potentially decisive vote to impose limits on redistricting for political gain and to assert that a business owner’s opposition to same-sex marriage could not justify a refusal to serve a customer.
The issues may be back at the high court soon, but probably in front of a more conservative court.
The court’s senior liberal justice, 85-year-old Ruth Bader Ginsburg, was prophetic when she talked with a reporter in the summer before Trump’s election.
At that point, Kennedy had just written an opinion upholding the consideration of race in college admissions and the court had rebuked Texas for burdensome restrictions on abortion clinics.
Ginsburg was looking ahead to a Hillary Clinton presidency, but she acknowledged how different things would look for the court if Trump won.
“I don’t want to think about that possibility, but if it should be, then everything is up for grabs,” Ginsburg said.
Republished with permission from the Associated Press.