Key Takeaways
1. The Supreme Court's Ideological Transformation
“Though today’s opinion does not go so far as to discard Roe or Casey,” Ginsburg wrote, “the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of ‘the rule of law’ and the ‘principles of stare decisis.’ ”
A profound shift. The period from July 2020 to July 2021 marked a dramatic ideological transformation of the Supreme Court, primarily triggered by the death of Justice Ruth Bader Ginsburg and the swift confirmation of Justice Amy Coney Barrett. This change solidified a conservative supermajority, altering the court's balance on critical issues. The shift was not merely incremental but represented a decisive move to the right, impacting the trajectory of American law for decades to come.
Ginsburg's legacy. Justice Ginsburg, a liberal icon, had become a symbol of resistance against the court's rightward drift in her final years. Her powerful dissents, often delivered from the bench, served as a "demosprudence" – a jurisprudence of the people – speaking directly to the public and inspiring a generation. Her decision to remain on the bench, despite calls for her retirement during the Obama administration, was a calculated risk that ultimately paved the way for a conservative replacement.
Barrett's swift ascent. President Trump's rapid nomination and the Senate's quick confirmation of Amy Coney Barrett, just weeks before the 2020 presidential election, underscored the intense politicization of judicial appointments. Barrett, a devout Catholic and avowed originalist, was seen by conservatives as the ideal instrument to fulfill their long-held project of reshaping the court. Her arrival immediately impacted key cases, particularly those involving religious liberty and public health.
2. Chief Justice Roberts's Diminishing Influence
As the strange pandemic year of death and renewal came to an end, was John Roberts perhaps wondering whether that statement, uttered in such defiant confidence, was really still true?
Loss of the center. Chief Justice John Roberts, once the pivotal swing vote on a closely divided court, found his influence significantly diminished following the arrival of Justice Amy Coney Barrett. His ability to forge consensus across the ideological divide, a hallmark of his earlier tenure, became increasingly challenging as the conservative bloc solidified, often leaving him in dissent with the liberal justices. This shift exposed the fragility of his leadership in a newly configured court.
Strategic incrementalism. Roberts had historically favored a strategy of incremental change, planting seeds that would germinate over time rather than pursuing immediate, confrontational shifts in the law. This approach was evident in his handling of voting rights and religious liberty cases, where he laid groundwork for future conservative victories. However, the accelerated pace of change and the aggressive stance of some conservative colleagues now threatened to bypass his measured approach.
Isolation in dissent. The 2020-21 term saw Roberts frequently isolated, particularly in high-profile shadow docket cases concerning COVID-19 restrictions and religious freedom. His lone dissent in a case about nominal damages, his first in over fifteen years, starkly illustrated his increasingly solitary position. This isolation suggested a court where the chief justice's traditional role as a consensus-builder was being overshadowed by a more ideologically driven majority.
3. The Politicization of the Judiciary
“The media can predict, but the media doesn’t get to decide who the winner is,” Senator Roy Blunt of Missouri, the senior Republican with oversight responsibility for the election, said on television the next day.
Election-year urgency. The confirmation of Amy Coney Barrett on the eve of a presidential election, after Senator Mitch McConnell had blocked a similar nomination by President Obama four years prior, starkly highlighted the deep politicization of the Supreme Court. President Trump openly stated his desire for a ninth justice to rule on potential election disputes, further blurring the lines between judicial independence and partisan interests. This created an unprecedented level of scrutiny and distrust.
Trump's direct attacks. The former president's public pronouncements, including his "Save America" rally speech on January 6, revealed his belief that his judicial appointees owed him loyalty and should rule in his favor. His repeated criticisms of the Supreme Court for not overturning the election results, calling them "gutless" and "ashamed," directly undermined the perception of judicial impartiality and fueled public cynicism about the court's role.
Partisan litigation. The period was characterized by a surge in politically motivated lawsuits, particularly those challenging the 2020 election results and the Affordable Care Act. These cases, often brought by partisan actors like state attorneys general or advocacy groups, sought to use the judiciary as a battleground for political agendas. The court's handling of these cases, especially the Texas lawsuit against four swing states, demonstrated its reluctance to be drawn into overtly political disputes, though the divisions remained clear.
4. Religious Liberty as a "First-Class Right"
“The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.”
Expanding religious claims. The Roberts court aggressively reinterpreted the First Amendment's Free Exercise Clause, transforming it from a shield protecting believers from government interference into a sword granting them a position of privilege. This shift was evident in a series of cases that prioritized religious claims over government interests, particularly in the context of public health and anti-discrimination laws. The court moved away from a standard of governmental neutrality towards religion.
COVID-19 as a catalyst. The pandemic provided a fertile ground for this expansion, with the court repeatedly siding with religious groups challenging public health restrictions on worship services. Decisions like Roman Catholic Diocese of Brooklyn v. Cuomo and Tandon v. Newsom established a "most favored nation" status for religion, requiring governments to treat religious activities at least as favorably as the best-treated comparable secular activities, even if public health experts saw clear differences in risk.
Weakening the Establishment Clause. This aggressive defense of free exercise often came at the expense of the Establishment Clause, which prohibits the government from endorsing or coercing religious practice. Cases like Trinity Lutheran and Espinoza mandated public funding for religious institutions, eroding the traditional "play in the joints" doctrine that allowed states to avoid subsidizing religious activities. The upcoming Carson v. Makin case promised to further solidify this trend, potentially requiring states to fund religious education directly.
5. Erosion of Voting Rights Protections
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Undermining Section 2. The court's conservative majority significantly weakened Section 2 of the Voting Rights Act, the last remaining nationwide protection against discriminatory voting practices after the Shelby County decision in 2013. In Brnovich v. Democratic National Committee, the court upheld Arizona election laws that disproportionately affected minority voters, establishing a more lenient standard for proving a Section 2 violation. This decision made it harder to challenge measures that, while appearing neutral, created obstacles for Black, Latino, and Native American voters.
Roberts's long game. Chief Justice Roberts had a long history of seeking to curtail race-conscious policies, dating back to his time in the Reagan administration. His 2013 Shelby County opinion, which invalidated the preclearance formula of Section 5, was a major step in this direction. In Brnovich, his support for Justice Alito's opinion, which set a high bar for proving discriminatory effect, further advanced his long-held views, effectively rolling back decades of voting rights jurisprudence.
"Mere inconvenience" vs. reality. The majority's approach in Brnovich dismissed the real-world impact of voting restrictions on minority communities as "mere inconvenience." Justice Kagan's dissent powerfully countered this, arguing that "equal voting opportunity is a function of both law and background conditions." She highlighted how seemingly neutral rules, like ballot collection bans or precinct changes, created substantial barriers for voters in areas with limited access to transportation or postal services, directly contradicting the intent of the Voting Rights Act.
6. Abortion Rights on the Brink
“A state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”
Viability under threat. The Supreme Court's decision to grant Dobbs v. Jackson Women’s Health Organization, a challenge to Mississippi's ban on abortions after fifteen weeks of pregnancy, signaled a direct threat to the core tenets of Roe v. Wade and Planned Parenthood v. Casey. These precedents had established fetal viability (around 23-24 weeks) as the constitutional firewall protecting a woman's right to choose. Mississippi's law, with its earlier ban, directly challenged this long-standing principle.
A changed court. The composition of the court, particularly after Justice Ginsburg's death and Justice Barrett's appointment, made this challenge possible. The 5-4 majority in June Medical Services v. Russo (2020), which struck down a Louisiana TRAP law, was precarious, with Chief Justice Roberts providing the swing vote but refusing to endorse the balancing test used by the liberal justices. With Barrett's arrival, the court now had a solid five-justice bloc openly critical of existing abortion jurisprudence, making a direct assault on Roe and Casey seem inevitable.
The "undue burden" debate. The June Medical decision, despite striking down the Louisiana law, sowed confusion regarding the "undue burden" standard from Casey. Roberts's refusal to join Justice Breyer's opinion, and his critique of the balancing test, left lower courts divided on how to evaluate abortion restrictions. This ambiguity, coupled with the court's new conservative majority, emboldened anti-abortion advocates to push for more restrictive laws, believing the court was ready to reconsider or overturn its foundational abortion precedents.
7. The Affordable Care Act's Precarious Survival
“No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats.”
Survival by standing. The Affordable Care Act (ACA) once again survived a Supreme Court challenge in California v. Texas, but its victory came on narrow jurisdictional grounds rather than a full endorsement of its constitutionality. The court, in a 7-2 decision, ruled that the plaintiffs – a coalition of Republican-governed states and individuals – lacked standing to sue because they had suffered no actual injury from the individual mandate after Congress reduced its tax penalty to zero. This avoided a direct ruling on the law's severability.
Roberts's consistent defense. Chief Justice Roberts, who had twice before cast the decisive vote to uphold the ACA, again played a crucial role in its survival. His skepticism during oral arguments about the plaintiffs' claim that Congress intended the entire law to fall when it zeroed out the penalty was a strong indicator. By assigning the majority opinion to Justice Breyer, Roberts ensured a disposition that, while narrow, kept the popular healthcare law intact and shielded the court from another politically charged decision.
Alito's persistent opposition. Justice Alito, joined by Justice Gorsuch, vehemently dissented, accusing the majority of a "fundamental distortion of our standing jurisprudence" and lamenting the court's consistent defense of the ACA. His lengthy dissent, twice the length of the majority opinion, reflected deep frustration with the court's refusal to invalidate the law. He even invited further litigation, suggesting that "many other parties" could still challenge the mandate, ensuring that "Our Affordable Care Act epic may go on."
8. The Shadow Docket's Growing Power
“The Court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours. Very few of these decisions offered any public explanation for their rationale.”
Decisions in the dark. The "shadow docket," comprising emergency applications and summary dispositions decided without full briefing or oral argument, gained unprecedented prominence during the 2020-21 term. These late-night, often unsigned orders became crucial battlegrounds for major ideological clashes, particularly concerning COVID-19 restrictions and the death penalty. This opaque process allowed the court to make significant rulings with minimal public scrutiny or detailed legal explanation.
Revealing divisions. The shadow docket exposed deep ideological fissures within the court, often revealing 5-4 or 6-3 splits that mirrored the court's new conservative majority. Justice Sotomayor, in particular, used her dissents from these orders to highlight procedural irregularities and the lack of reasoned decision-making. Her detailed critiques served as a public record of the court's actions, emphasizing the human cost of these expedited rulings and the erosion of traditional judicial processes.
Impact on precedent. While shadow docket decisions are technically not binding precedent in the same way as fully argued cases, their sheer volume and the significance of the issues addressed gave them considerable weight. The rulings on COVID-19 restrictions, for instance, established a new standard for religious exemptions that would later be formalized in argued cases. This demonstrated how the shadow docket could be used to subtly shift legal doctrine without the transparency and deliberation of the court's regular calendar.
9. The Death Penalty's Resurgence and Divisions
“There can be no ‘justice on the fly’ in matters of life and death.”
Trump's execution spree. The Trump administration's unprecedented rush to execute federal inmates in its final months, carrying out thirteen executions after a seventeen-year hiatus, created a stark and disturbing chapter in the court's history. This "execution spree" occurred despite growing public disenchantment with capital punishment and the incoming Biden administration's pledge to abolish the federal death penalty. The court largely enabled this, frequently vacating lower court stays of execution.
Sotomayor's solitary voice. Justice Sotomayor emerged as a powerful, often solitary, voice of dissent against these expedited executions. Her detailed opinions meticulously documented procedural irregularities, claims of intellectual disability, and the lack of proper judicial review. She accused the court of "justice on the fly" and "expedited spree of executions," making a precise record of the court's actions and the human impact of its decisions, even when she could not sway her colleagues.
Internal conservative splits. While the court's conservative bloc generally supported the executions, there were subtle shifts and disagreements, particularly regarding religious accommodations in the execution chamber. The Dunn v. Smith case, where Justice Barrett joined the liberals to keep a stay in place for an inmate seeking his pastor's presence, highlighted that not all conservatives were aligned on every aspect of death penalty procedure, revealing a potential for nuance even within the new majority.
10. Amy Coney Barrett's Emergence
“I want to be careful to say,” she told Graham, “that if I’m confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett.”
A new conservative voice. Justice Amy Coney Barrett, confirmed just weeks before the 2020 election, quickly established herself as a reliable conservative vote, fulfilling the hopes of those who championed her nomination. Her Thanksgiving eve vote in Roman Catholic Diocese of Brooklyn v. Cuomo immediately shifted the court's balance on religious liberty, demonstrating the profound impact of her presence. She consistently sided with the conservative bloc in shadow docket cases, particularly those involving religious exemptions.
Nuance and independence. Despite her strong conservative alignment, Barrett showed hints of a more nuanced approach, distinguishing herself from some of her more outspoken conservative colleagues. In Tandon v. Newsom, she pushed back against Justice Gorsuch's expansive view of "comparable" secular activities, suggesting a more measured application of religious freedom principles. Her concurring opinion in Fulton v. City of Philadelphia also expressed skepticism about simply replacing Smith's categorical approach with an "equally categorical strict scrutiny regime," hinting at a desire for more subtle legal development.
Judicial philosophy in practice. Barrett's first majority opinion in United States Fish and Wildlife Service v. Sierra Club, an administrative law case, was a careful application of statutory interpretation, reflecting her commitment to applying "the law as written." Her dissent in Kanter v. Barr (from her Seventh Circuit tenure), which explored the historical basis for stripping felons of gun rights, showcased her originalist methodology, albeit with a willingness to consider "present-day judgments" not strictly limited to 1791. These early opinions provided glimpses of "Justice Barrett," distinct from her mentor Justice Scalia.
11. The "Fourth Wall" of Judicial Impartiality Broken
“For a justice to include this phrase in a dissenting opinion is the judicial equivalent of an actor’s breaking the ‘fourth wall’ by acknowledging the audience and thus dispensing with the fiction that the action on stage is anything other than a play.”
The illusion shattered. The 2020-21 Supreme Court term fundamentally shattered the illusion of the court as an apolitical institution, a phenomenon Justice Ginsburg had presciently described as the "fourth wall" breaking. The rapid, politically charged confirmation of Amy Coney Barrett, coupled with President Trump's explicit demands for judicial loyalty, exposed the court's internal dynamics and external political pressures, making it impossible to ignore the human and partisan elements influencing its decisions.
Legitimacy concerns. The increasing politicization raised serious concerns about the court's legitimacy and public trust. Justice Breyer, in his Harvard Law School lecture, explicitly warned that if the public perceives judges as "politicians in robes," confidence in the rule of law will diminish, undermining the court's power. This institutional concern, shared by Chief Justice Roberts, often influenced their votes, particularly in high-profile cases like the Affordable Care Act, where avoiding a politically explosive outcome seemed paramount.
A new era of transparency. While the breakdown of the "fourth wall" was unsettling for many, it also ushered in a new era of transparency, albeit an uncomfortable one. The shadow docket, the public dissents, and the open acknowledgment of ideological divides forced a more realistic understanding of how the court operates. This period revealed a court in flux, navigating profound legal and political challenges, with its members grappling with their roles in a deeply polarized nation.
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