The Confident and Aggressive Conservative Majority

If anyone thought the U.S. Supreme Court's conservative majority with three relatively new justices would be cautious about stepping into the nation's most divisive social issues, especially when some justices have voiced fears for the court's legitimacy if perceived as political, the current term has put that thought firmly to rest.

The court on Monday agreed to review two cases challenging the already narrowed consideration of race (by the Supreme Court) in the admissions policies of Harvard University and the University of North Carolina.

The cases will probably be argued next fall. But in little more than a year now, the justices have agreed to decide not only whether racial preferences in higher education continue to be constitutional, but whether to overrule their landmark abortion rights precedent, Roe v. Wade; whether to expand gun rights to allow open carry; whether to expand religious rights further by requiring Maine to allow religious schools to participate in a special tuition aid program in its rural areas, and whether the U.S. Environmental Protection Agency has authority to regulate power plant emissions.

Of course, a divided court has already decided a major and contentious health issue.  The Occupational Safety and Health Administration, the majority said, did not have the authority to issue the Biden administration's vaccinate-or-test rule for large employers because of the ongoing pandemic.

The two university cases were brought by the same individual—Edward Blum—who failed to convince the justices to strike down the admissions policy at the University of Texas at Austin. The lower appellate court—the most conservative court in the country—had twice upheld the admissions policy and in 2016, a 4-3 Supreme Court agreed, with Chief Justice John Roberts Jr. and Justices Clarence Thomas and Samuel Alito dissenting. (Justice Antonin Scalia died that year and Justice Elena Kagan did not participate because of her previous involvement as U.S. solicitor general).

The admissions challenges are strange in one respect. Although most Americans oppose affirmative action, it has not been a front burner issue in the courts or for the country lately. But it has long been a target of the conservative movement.

So what to make of this potentially blockbuster list of issues on the justices' docket? At the very least, it reflects a confident and aggressive conservative majority whose confidence and aggressiveness are due in no small part to having six members, only five of whom are needed to make major changes in the law.

The most vivid example of its aggressiveness this term was what five of the six did with a challenge to Texas's ban on abortion after six weeks of pregnancy and its vigilante-like enforcement scheme.

Although it is difficult for both sides, take abortion out of the Texas challenge for a moment. Five justices allowed a clearly unconstitutional law—one that violated its own precedents—to go into effect, depriving a significant number of American citizens of their ability to exercise a constitutional right, and in turn, creating physical, mental and economic harm. That deprivation of a constitutional right has continued since September 1. It is truly extraordinary, whatever your views on abortion.

At the beginning of the current term, a number of legal scholars warned that this term's issues presented a challenge and a threat to the institution of the Supreme Court. A string of 6-3 votes all going in one direction in politically-divisive cases could result in long-term damage to the institution in the eyes of the public.  We will soon know how the justices navigate the challenge and the threat.

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.