The double-edge sword of the Supreme Court’s conservative majority

The U.S. Supreme Court on Monday began a new and potentially controversial term under the shadow of justices’ concerns about the legitimacy of the institution in the eyes of the public.

Four justices in the past two weeks have to different degrees blamed the media, politicians, and other critics for portraying the court, in the words of Justice Amy Coney Barrett, as “a bunch of partisan hacks.”  But what hasn’t been heard by those justices, at least not with equal emphasis, is that all of the justices are themselves the ultimate guardians of the court’s legitimacy.

That they play this very crucial role was succinctly stated by the late Ruth Bader Ginsburg a decade ago. She said:

“What I care most about, and I think most of my colleagues do too, is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government.”

The problem for the court is that its current six conservative vote majority is a double-edge sword. Five votes are needed to create a majority ruling. With six conservatives, there is little need to find common ground when one of the six is reluctant to join the other five, and no incentive to do so with the three liberal justices. It is a powerful position for this conservative majority.

On the other hand, if the public witnesses a series of one-sided rulings by the conservative majority in cases that are of great interest and concern to the public, such as the abortion and gun-rights cases in the new term, there is a risk that people will indeed view the justices as “a bunch of partisan hacks.” And that would be the case as well if the six-justice majority were a liberal one.

How did the court get to this fraught juncture? It's not just because President Donald Trump had three conservative appointments to the Supreme Court, although that is an important part of the story.

There have been justices known as “swing votes” on the court for decades, going back at least to the New Deal court. Justice Stanley Reed who sat on that court was known as a “swingman.”

True swing justices, such as Justices Sandra Day O'Connor and Anthony Kennedy, are often unpredictable in their votes on closely divided courts and when they may move right or left with their power to decide cases, they convey the impression of a neutral or fair court.

Kennedy, who retired in 2018, was the court's last traditional swing justice. After Justice Ginsburg's death in 2020 and the confirmation of Justice Amy Coney Barrett, the court gained its 6-3 conservative majority.

Despite the power of “6,” there appeared to be a concerted effort last term among most of the justices to find enough common ground to decide cases without one-sided rulings to the right.

In that term, the “6” who found common ground most often were the chief justice and Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett.

Their efforts were seen in decisions involving the Affordable Care Act, a religion challenge to Philadelphia's non-discrimination requirement on foster care agencies, and a First Amendment challenge about a student's off-campus vulgar language and gestures critical of her school.

There also were examples of cross-voting—individual justices defying their conservative or liberal typecasting.

But there are already signs that on the most controversial or political issues confronting the court, there is less common ground to be found.

Acting on three emergency applications this summer, the justices divided 6-3 twice and 5-4 once. The 6-3 rulings were against the Biden administration's efforts to extend an eviction moratorium and to block a Trump immigration policy. The 5-4 ruling, with Roberts joining the three liberal dissenters, allowed Texas' ban on abortions after six weeks to take effect.

Soon after the Texas ruling, public opinion polls reflected a sharp drop in the public's approval of the Supreme Court.

The justices have another “power” that can be used to protect the institution. They have nearly complete control of the cases they choose to review each term. Only four votes are required to grant review.

There is no need to for them to leap into some of the most divisive questions of the day when there is no conflict among the lower courts or no compelling national reason to do so.

It is too late to wield that power for the new term in which the justices have been asked to overrule their abortion rights precedents, expand gun rights outside of the home, and provide greater government accommodation of religion.

The new term perhaps will be the biggest challenge the conservative majority has faced yet in balancing the demands of the law with protection of the institution's legitimacy. The only certainty is that the public will be watching closely.

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.