The Supreme Court's Right Turn Goes Way Beyond Guns and Abortion

Amelia Thomson-DeVeaux / FiveThirtyEight
The Supreme Court's Right Turn Goes Way Beyond Guns and Abortion Protesting mandates in San Francisco last week that require city employees to be vaccinated. (photo: Jim Wilson/The New York Times)

When former President Donald Trump’s third Supreme Court nominee was confirmed in 2020, cementing the most conservative majority on the court since the 1930s, it wasn’t clear which conservative goals the justices would tackle first. Culture-war issues like abortion, gun rights, affirmative action and religious liberty were obvious possibilities, but issues with a more subtle impact like reining in the power of the executive branch and limiting unions had long been on conservative legal advocates’ wish list, too. So the question wasn’t whether the court would move to the right — it was more a question of where they’d start.

The term isn’t over yet, but it’s already looking like this year could be a bonanza for conservatives — and not just because of the high-profile cases that have snapped up most of the attention. I’ve written about how the justices could limit or overturn Roe v. Wade, the 1973 case that established a constitutional right to abortion, and expand gun rights for the first time in over a decade. But there are several other, less flashy cases that could also have sweeping effects on Americans’ lives.

It seems very likely, for instance, that the justices will continue to erode the barrier between church and state by requiring states to fund religious schools in programs where they already support non-religious private schools. The conservative justices could also impede government agencies’ ability to act independently of Congress by giving more power over their decisions to the conservative-leaning federal judiciary.

“This term is a gift basket to the conservatives who wanted to elect Trump so he could appoint Supreme Court justices,” said Leah Litman, a law professor at the University of Michigan. “It’s becoming clear that the conservative justices are interested in moving the law on a bunch of major issues that have huge practical consequences for how our government works and for people’s lives.”

Church-state separation will likely continue to be eroded

In some rural parts of Maine, children’s tuition at non-religious schools is covered by state funds. This provision doesn’t apply to religious schools, but that might be about to change. Two families who send or want to send their children to religious private schools sued the state, saying that they should be able to get reimbursed for tuition at those schools, too. They argued that if Maine paid for kids to attend some private schools, excluding religious schools was unconstitutional.

At the oral argument on the case in December, the conservative justices seemed inclined to agree with the families. Lawyers for Maine and the Biden administration contended that the program was intended to provide a handful of children in isolated parts of the state with something resembling a public school education, crucially without fostering a religious worldview. But several of the justices appeared unconvinced. “All [the families] are asking for is equal treatment, not special treatment,” said Justice Brett Kavanaugh. “They’re saying, ‘Don’t treat me worse because I want to send my children to a religious school rather than a secular school. Treat me the same as the secular parent next door.’”

Lee Epstein, a political scientist at Washington University in St. Louis who studies the Supreme Court, told me that she thinks that the Maine families will easily prevail. Along with Eric Posner, a law professor at the University of Chicago, she analyzed the Roberts court’s track record on religious liberty and church-state separation cases and found that the justices sided with religious organizations in over 80 percent of cases, a stunning rise from about 50 percent in previous courts since 1953. “This court is ruling with religious plaintiffs at an incredibly high rate,” she said. “I see this case as just continuing with that trend.”

A victory for the families in Maine would also continue a long winning streak for religious plaintiffs in the more specific realm of school funding. Several cases in recent years have centered on funding for religious schools, and the court has chipped away at states’ ability to prevent religious schools from receiving taxpayer money. In 2017, for instance, a 7-2 majority — including two of the liberal justices, Elena Kagan and Stephen Breyer — ruled that Missouri couldn’t exclude a religious school from a public grant for playground resurfacing. And three years later, in 2020, a 5-4 decision effectively gutted state constitutional provisions that bar public funds from going to religious schools, by ruling that Montana could not exclude religious schools from its private school scholarship program. Now, the Maine families and their supporters are pointing to those two cases as precedents.

The court’s path on these cases has, up until now, embodied the incrementalism that Chief Justice John Roberts appears to prefer. The first decision was incredibly narrow — the justices were clear that it applied only to state grants involving playground resurfacing — but it left the door open for more far-reaching cases. Each subsequent case has built on the last, with increasingly broad implications. The Montana case opened the door for legislators in more states to create programs that benefit religious schools. Now, depending on how the justices rule, the Maine case could open a new pathway for religious schools to receive public funding.

That, in turn, could lead to even more extreme cases — and a possible abandonment of the gradualism that Roberts prizes, depending on how the other conservatives are feeling. “Every time they reach one of these decisions, they are shifting the Overton window and inviting conservative advocates to ask them to go further,” Litman said. And there are plenty of signals that there’s an appetite for a sharper turn to the right. Just last year, the Republican-appointed justices indicated that they were willing to reconsider a longstanding precedent that limits constitutional protections for religious conscience.

Depending on how this term’s case turns out, and where the justices turn next, this line of cases on schools could affect even more hotly contested religious liberty disputes, like whether publicly funded charities or business owners who serve the general public can discriminate on the basis of their religious beliefs. “We might end up with a situation where states are required to fund programs that discriminate on the basis of race or sexual orientation,” Litman said.

The court could start curtailing the power of the executive branch

Some cases that make their way to the Supreme Court are easily comprehensible to non-lawyers — but most are not. That doesn’t mean, though, that they don’t have an important impact on Americans’ lives, and that’s particularly true of cases involving the power of the executive branch. This term, two of those seemingly sleepy disputes could significantly weaken the power of the federal agencies and give a huge amount of veto power to federal judges, many of whom are highly conservative.

Admittedly, the specifics of the cases don’t make for riveting reading material. In one, which the Supreme Court heard in November, hospitals are challenging the federal government’s system for calculating Medicare reimbursements. In the other — technically four cases bundled together and scheduled for argument in late February — GOP-controlled states, energy companies and coal mine operators are arguing that an Obama-era plan to fight climate change isn’t authorized under the Clean Air Act.

But underneath those dry-sounding disputes is a long-running battle over what the executive branch is actually allowed to do. In the case involving the hospitals, the justices could, for instance, reconsider a judicial doctrine first established in a 1984 case involving the energy company Chevron, which gives federal agencies a lot of wiggle room to interpret the laws they’re charged with carrying out. The idea behind the Chevron doctrine is that Congress can’t anticipate all of the minute problems and wrinkles that crop up as laws are enacted, and agencies’ experts are capable of making reasonable decisions in situations where the law is ambiguous — and perhaps, most importantly, are in a better position to make those calls than judges. The climate change case, meanwhile, involves a dormant legal doctrine called “nondelegation,” which limits how much power Congress can delegate to federal agencies. In recent years, conservative justices — especially Justice Neil Gorsuch — have been clear about their desire to curtail or overturn the Chevron doctrine, and bring back the nondelegation doctrine.

It’s hard to overstate the stakes of these two cases at a moment when much of the country’s actual governing — for better or worse — happens in the executive branch. Environmental issues, workplace safety, health care, employment discrimination and more are all handled by various administrative agencies. Moreover, with Congress in a perpetual state of logjam, it’s hard to imagine lawmakers responding to these potential rulings by writing laws with more specific instructions to those agencies — if that’s even possible. “There are a lot of things that Congress can’t anticipate or might not be worth their time,” Litman said. “Do you really want Congress trying to figure out something like the proper level of a particular chemical that can be in buildings?”

So the practical impact of overruling the Chevron doctrine or reimposing the nondelegation doctrine would be to give judges more influence over federal regulations. “If you look at it skeptically, this would amount to judges giving themselves more power,” Epstein said. Given the conservative lean of the federal judiciary, that would likely lead to a lot of regulations being struck down — which would be a blow to the power of the presidency in general but would probably have the biggest impact on Democratic presidents.

None of these cases have gotten a lot of attention so far, which could make it easier for the court to do something fairly dramatic without getting a lot of blowback. And given how technical the cases involving federal agencies are in particular, the court might not have to worry about going against public opinion anyway. But for conservative advocates watching the courts, these cases have a lot of significance, which means this term could mark an even sharper turn to the right than the non-lawyers among us may be expecting.

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