In a Year, Supreme Court’s Conservative Wing Upends Abortion and Affirmative Action Precedents

Over the course of 370 days, the Supreme Court, steered by the conservative justices appointed by President Donald Trump, has accomplished the long-held conservative legal objective of dismantling Roe v. Wade and eradicating affirmative action in higher education.

Last June, nationwide abortion rights protections were brought to an end by the court. Recently, it was decided that racial admission considerations at the country’s oldest private and public institutions, Harvard and the University of North Carolina, were illegal.

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Established precedents dating back to the 1970s have been upended, both in regards to abortion and implicitly within the context of affirmative action.

“It is this court’s notable feature. It is enacting major changes in prominent areas in an extraordinarily short time,” noted Tara Leigh Grove, a law professor at the University of Texas.

Despite the swirling ethical questions surrounding the court and public faith in the institution plummeting to its lowest in 50 years, the conservative majority triumphed in other significant decisions.

These include rejecting the Biden administration’s $400 billion student loan forgiveness initiative and asserting that a Christian graphic designer can refuse, based on free speech rights, to design websites for same-sex couples, despite a Colorado law that prohibits discrimination based on sexual orientation and other attributes.

A 5-4 vote saw the court significantly curtail the federal government’s authority to regulate water pollution into certain wetlands, although the administration’s position was unanimously rejected by all nine justices.

The affirmative action decision is arguably the most significant constitutional resolution of the year, with the court’s two Black justices, Clarence Thomas and Ketanji Brown Jackson, presenting profoundly divergent viewpoints. Thomas voted with the majority to abolish it, while Jackson, in her first year on the court, dissented.

The past year has also seen its fair share of unexpected developments.

An unusual mix of conservative and liberal justices voted in favor of Black voters in an Alabama redistricting case and declined to support broad arguments in a North Carolina redistricting case that could have unchecked state legislatures and drastically changed congressional and presidential elections.

The court also sided with the Biden administration on deportation priorities and upheld the Indian Child Welfare Act, a federal law designed to keep Native American children with Native families.

These cases underscore the influence that Chief Justice John Roberts exerted, or perhaps regained, over the court following a year where the other five conservatives advanced faster than he desired in certain areas, including abortion.

Roberts authored a disproportionate number of the term’s major cases: conservative results on affirmative action and the student loan plan, and liberal victories in Alabama and North Carolina.

In Alabama, this decision was particularly surprising as Roberts has consistently aimed to limit the landmark Voting Rights Act since his early career in the Reagan administration. As chief justice, he authored the decision a decade ago that gutted a crucial part of the law.

Despite this, Roberts was part of majorities that dismissed the most aggressive legal arguments offered by Republican officials and conservative legal proponents in the Alabama case and elsewhere.

A string of divergent decisions seemed almost calculated to counter criticisms of the court’s legitimacy, raised by Democratic and liberal critics, as well as some justices, in response to last year’s abortion ruling among others. This narrative was fueled by disclosed reports of undisclosed, paid jet travel and luxurious trips for Justices Clarence Thomas and Samuel Alito, funded by billionaire Republican donors.

Grove opined that the court does not consciously consider public opinion. “But if there’s anyone who might consciously contemplate these issues, it’s the institutionalist, the chief justice. He’s deeply troubled by the assaults on the Supreme Court.”

Roberts appealed to the public not to misconstrue disagreements among the justices as disparagement of the court. “Any such misperception would harm this institution and our country,” he penned in the student loans case in response to a vehement dissent by Justice Elena Kagan.

Although Roberts has resisted implementing a code of ethics for the court and questioned Congress’s authority to enforce one, he has stated that the justices would do more to demonstrate their adherence to high ethical standards, without providing specifics.

Some conservative law scholars dismissed the notion that the court surrendered to external pressures, consciously or not.

Jennifer Mascott, a law professor at George Mason University, noted, “External factors that could have significantly impacted court proceedings didn’t.”

Curt Levey, president of the Committee for Justice, highlighted roughly equal numbers of major decisions that could be classified as politically liberal or conservative.

Levey stated that conservatives “were not disappointed by this term.” Despite warnings from Democrats and their allies about an ideologically extreme Supreme Court, they ended up “applauding as many major decisions as they condemned,” he added via email.

However, not all liberal critics were appeased.

Brian Fallon, director of the court reform group Demand Justice, labeled the past year “another disastrous Supreme Court term.” He derided experts who search for “so-called silver linings in the Court’s decisions to suggest all is not lost, or who highlight one or two so-called moderate decisions from the term to suggest the Court is not as extreme as we think and can still be swayed occasionally.”

President Biden expressed on MSNBC on Thursday that the current court has “done more to unravel basic rights and basic decisions than any court in recent history.” He highlighted the revocation of abortion protections and other longstanding precedents as examples.

Still, Biden indicated that he believed some members of the high court “are beginning to realize their legitimacy is being questioned in ways it hasn’t been questioned in the past.”

The justices are now commencing a long summer recess. Their return to the bench on the first Monday in October for a term that currently lacks the monumental cases that marked the last two terms.

The court will assess the legal aftermath of last year’s extensive expansion of gun rights, in a case involving a domestic violence gun ban that was overturned by a lower court.

A fresh legal dispute over abortion could also reach the court in the coming months. In April, the court preserved access to mifepristone, a drug used in the most prevalent method of abortion, while a lawsuit concerning it is making its way through federal court.

The conservative majority will also have opportunities to further restrict federal regulatory agencies, including a case that requests them to reverse the so-called Chevron decision, which defers to regulators when they aim to enforce comprehensive, occasionally ambiguous, laws enacted by Congress. This 1984 decision has been referenced by judges over 15,000 times.

Reflecting on the term that had just concluded in July 2016, the late Justice Ruth Bader Ginsburg made two forecasts. One was completely off target, while the other was remarkably accurate.

At that time, the court had just endorsed a University of Texas affirmative action scheme and struck down state restrictions on abortion clinics.

Her initial prediction was that these issues would not be revisited by the high court anytime soon. Her second was that if Trump won the presidency, “everything is up for grabs.”

The passing of Ginsburg in 2020 facilitated Trump’s appointment of Justice Amy Coney Barrett to the court, solidifying conservative dominance.

Liberal legal scholar Melissa

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More about Supreme Court Decisions

• Roe v. Wade
• Affirmative Action
• Justices nominated by Trump
• Alabama redistricting case
• Supreme Court’s stance on gun rights
• Chevron Decision