The Supreme Court is ultra-conservative. A few recent decisions do not change this.
Due to the inter-ideological makeup of Supreme Court justices in the majority of several high-profile decisions, as well as the perceived narrowness of those decisions, the Roberts Court has been described as an example of moderation and restraint. This account is a mistake. In the session that just ended, several smaller decisions presented more traditional partisan divisions – and those decisions are likely to be overwhelmingly consequential.
The two rulings handed down by the court on the last day of office highlight its partisan divisions over another key GOP concern: voting rights and democratic standards.
For example, the June 6-3 decision in Cedar Point Nursery v. Hassid struck down long-standing California labor regulations that made it easier to organize migrant farm workers. In doing so, he continued the Roberts court attacks on workers’ ability to organize, providing a powerful tool in the Conservative Legal Project’s deregulation agenda. And last week’s decision in Brnovich v. Democratic National Committee further weakens protections in the voting rights law, while Americans for Prosperity Foundation v. Bonta facilitates black money contributions that enable the minority political reign of the Republican Party.
These sharply divided decisions, and their reasoning, are better indications of the ideological orientation of the Roberts court than California v. Texas, which dismissed an Affordable Care Act challenge in a 7-2 decision all of the liberal judges joined, or Mahanoy Area School District v. BL, in which everything but conservative judge Clarence Thomas voted in favor of a teenager’s right to free speech outside of school. Although these decisions were more liberal in their outcome and judicial composition, they were ultimately too narrow to set broad precedents.
Instead, decisions in which the court split along partisan lines were more legally significant decisions. In Jones v. Mississippi, the six Tory court made it harder for juveniles to challenge life sentences without parole. (The court refused to require judges to find – or even assess – whether minors were definitely incorrigible before sentencing them to life without the possibility of release.) In Edwards v. Vannoy, the Conservative qualified majority concluded that people who had previously been wrongly convicted by juries could not challenge their beliefs.
This ideological focus was even clearer in decisions on issues that are at the heart of the Republican Party’s agenda today: protecting the interests of the rich and corporate as well as eroding voting rights, including Cedar Point Nursery and Brnovich. While the precise implications of the court’s decision in Cedar Point Nursery will depend on how the judiciary applies its new legal test for what constitutes a taking of property, this marks a significant shift in property rights case law – and a blow to the unions.
The California regulations at issue required farms to allow union organizers access to parts of their property the hour before and after work, as well as during workers’ lunch breaks. (Union organizers could only be there 120 days a year.) Producers argued that the settlement amounted to a “take” of their property – forcing the government to pay them for the use of their land. (The Fifth Amendment prohibits the taking of private property without fair compensation.)
Writing for the court’s six Tories, Chief Justice John Roberts accepted the producers’ argument that California regulations amounted to a take because it gave other people the “right to invade” the property of the owners. This means California must pay growers in order to allow organizers to enter their land.
The potential magnitude of the court’s decision is astounding. Consider the large number of laws that require landowners to allow inspectors, for example, on their property. Justice Stephen Breyer, in his dissent for the three court liberals, listed property inspections for workplace safety, food safety, welfare, etc.
There are also a myriad of laws that require business owners to allow people on their property that they would prefer to exclude. The Civil Rights Act of 1964, for example, prohibits a company from discriminating on the basis of race, sex, religion or national origin. The Fair Housing Act prohibits landlords from discriminating on the basis of race or sex.
Cedar Point Nursery’s opinion is important not only because of its (potentially) sweeping implications, but also because it characterizes how Roberts’ court advances conservative cases. The court’s reasoning in the revenue clause could provide a powerful tool for deregulation – and a stick against a myriad of regulations.
The opinion is also part of a trend of judicial antagonism by the conservative wing of the Roberts court over workers’ and union rights. Most famously, in 2018, Tory and Liberal Roberts court judges split along ideological lines to invalidate the ability of public sector unions to collect ‘fair’ fees from the workers on whose behalf they negotiated – a blow to the finances of public sector unions. A ruling with the same partisan divide in the same year limited the ability of workers to bring a class action lawsuit in court to challenge an employer’s failure to pay overtime or the minimum wage.
The two rulings handed down by the court on the last day of office highlight its partisan divisions over another key GOP concern: voting rights and democratic standards. In Brnovich on Thursday, Judge Samuel Alito wrote an opinion for the six conservatives that gutters the provision in the voting rights law that is supposed to protect against voting laws or policies that further disadvantage racial minorities.
Essentially, the court adopted the idea that states have an interest in eliminating electoral fraud even when they have no evidence of such fraud. This reasoning will make it more difficult for plaintiffs to prevail in future Voting Rights Act challenges amid a wave of voter suppression.
Likewise, in Americans for Prosperity, also released Thursday, the court struck down California’s requirement that nonprofits submit the names of major donors in order to allow the state to guard against fraud and verify the accuracy of financial reports. The court ruled that donors to conservative causes who carried the case were at disproportionately high risk of harassment and that the state had failed to show that it actually needed donor information.
These decisions show the true colors of the Roberts court. They underline its partisan and ideological divisions and the consequences they will have for the country. A few decisions which garner the support of more liberal judges and which do not satisfy all conservative ambitions do not change this reality.