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At the beginning of the new year, the U.S. Supreme Court embarks on the second half of its term. It will do so with a fortified 6-3 conservative majority. NPR legal affairs correspondent Nina Totenberg has this preview.
NINA TOTENBERG, BYLINE: For decades, the court's five-justice conservative majority was split between those who wanted to move slowly in a more conservative direction and others who wanted to move more aggressively. But now, with the more centrist conservatives retired and three Trump appointees on the court, there's a conservative majority of six, meaning one vote to spare. No longer, as last term, does the reliably conservative but more incrementalist Chief Justice Roberts have the controlling vote. The other five can prevail without him. Bottom line, the current court may well be the most conservative since the 1930s. Tom Goldstein is founder and publisher of SCOTUSblog.
TOM GOLDSTEIN: It really is going to be the case that on a lot of these issues, you just have five to go fast. And so on religion, abortion, gun rights and race, for example, there is a solid majority to change the law and move whip quick.
TOTENBERG: Already argued this term, but not decided yet, are two big cases. One tests whether the Affordable Care Act, known as Obamacare, must be struck down entirely on a technical point after being upheld twice before by the high court. The other case heard earlier this term tests whether the city of Philadelphia may refuse to award some foster care contracts to Catholic Social Services because CSS, based on religious objections, refuses to screen LGBT couples as required by the city's nondiscrimination laws. The tea leaves, as of now, indicate CSS will win, meaning the contracting power of government, the one area long viewed as relatively immune to religious challenges, would now be fair game. As constitutional law professor Josh Blackman observes...
JOSH BLACKMAN: Quite significant departure from what the court might have done 15 or 20 years ago...
TOTENBERG: Indeed, even before the confirmation of Justice Amy Coney Barrett, there was a firm conservative majority on the court in cases involving religious liberty. The one case where Chief Justice Roberts voted with the liberals was on the power of governors to limit attendance at religious services in order to curb the spread of the coronavirus. In what could be a harbinger of things to come, Roberts' vote became irrelevant after Barrett joined the court and provided a fifth vote against Governor Andrew Cuomo's actions in New York. Similar orders limiting church and synagogue attendance elsewhere were soon struck down.
On the question of executive authority, the court's conservative majority has generally deferred to President Trump's muscular assertions of presidential power. So one big question now is whether the court will be similarly deferential to Biden.
STEPHEN VLADECK: I think the short answer is probably not.
TOTENBERG: University of Texas law professor Stephen Vladeck.
VLADECK: Some of that's going to reflect the fact that the court will be more suspicious and skeptical of some of the policies that the Biden administration attempts to pursue by executive order.
TOTENBERG: SCOTUSblog's Goldstein agrees.
GOLDSTEIN: Historically, the Supreme Court's view about whether a president has powers has tended to track whether the justices in the majority liked the president and his policies.
TOTENBERG: Meanwhile, there are the hot-button social issues. Will Roe v. Wade, for instance, the court's 47-year-old abortion rights precedent, be overturned? There are two schools of thought on that. One is that the court will systematically hollow out the right to abortion so that it's a right on paper only. The other is that time's up. Here's NYU law professor Melissa Murray.
MELISSA MURRAY: There is, I think, a galvanizing view within the pro-life movement that the time has come to call the question.
TOTENBERG: If Roe is to be overruled, however, it likely will take more than a few years to come to fruition. On guns, though, the court looks for the first time to have a clear majority that is hostile to gun regulation. Last term, the court punted and punted again, declining to hear 10 gun rights cases. Presumably, Chief Justice Roberts' then-deciding vote was still in doubt. But now, with new Justice Barrett on the court, there appear to be five conservative votes ready to march down the path of expansive gun rights. And gun rights activists are already teeing up new cases. Again, here's professor Blackman of South Texas College of Law Houston.
BLACKMAN: I can tell you, people are getting more aggressive. Gun rights groups will be emboldened to try to push to new frontiers.
TOTENBERG: Election cases are also before the court, though none that will challenge President Trump's election defeat. While the court held the line on President Trump's post-election efforts to change the election outcome, election law experts expect the conservative majority will allow all manner of preelection restrictions in the future, even if those restrictions impact minorities more severely. Again, Tom Goldstein.
GOLDSTEIN: For the chief justice and easily a majority of this conservative Supreme Court, their views about race are fully baked. We should not have decisions and we should not have laws that are based on racial considerations.
TOTENBERG: In the same vein, by next term, the court will likely hear arguments in one of several cases testing affirmative action in higher education. The court, for a half-century, has repeatedly ruled that some consideration of race in college admissions is OK, but a racial quota is not. Now, there may well be a conservative majority to reverse those rulings and bar all consideration of racial diversity. After that, affirmative action in employment could be next.
In the coming year, other key developments as well could shape the Supreme Court's future. Eighty-two-year-old Justice Stephen Breyer, one of the court's three remaining liberals, could step down. But he may feel constrained by the fact that Republicans currently control the U.S. Senate and GOP leader Mitch McConnell has never hesitated to use his power as majority leader to block or advance Supreme Court nominees based solely on whether the nominating president is a fellow Republican or a Democrat. So Breyer may stay his hand. If, however, the Democrats win two Senate seats in Georgia, giving them the upper hand in the Senate for the first time in 10 years, Breyer may well pull the trigger on retirement.
Nina Totenberg, NPR News, Washington.
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