“It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” Roberts wrote in justifying the court’s finding that there was standing to challenge the loan forgiveness, and that it exceeded the administration’s legal authority. “We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.”
This was not a statement of law but a moment of unexpected vulnerability — a plea for understanding from an embattled chief grappling with the court’s precipitous plunge in public standing and the accompanying ferocity of a liberal minority unsparing in its criticism. As much as Roberts is eager, even desperate, to characterize the court’s disputes as civil disagreements among “reasonable minds,” this minority isn’t inclined to play along. It has little interest in pretending this fractious brawl for the soul of the court is a polite tea party.
And so, an unsurprisingly furious end to what overall was, compared to admittedly dismal expectations, a surprisingly restrained term.
Consider the opening nose-punch in Justice Elena Kagan’s student loan case dissent: “In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.”
Consider Kagan’s closing fist to the gut: “From the first page to the last, today’s opinion departs from the demands of judicial restraint.” There is, she wrote, “surely nothing personal in the dispute here,” and no disparagement intended, but “Justices throughout history have raised the alarm when the Court has overreached.”
Kagan was not alone in her fury. Dissenting in another case Friday, involving a Christian website designer who balked at creating wedding websites for same-sex couples, Justice Sonia Sotomayor inveighed: “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
And the day before, as the conservative majority tossed aside 45 years of precedent on race-conscious affirmative action programs in college admissions, the court’s two Black justices, Clarence Thomas and Ketanji Brown Jackson, went after one another, gloves off.
Thomas decried Jackson’s “unfathomable” and “irrational” “race-infused world view.” Jackson countered that Thomas’s “prolonged attack responds to a dissent I did not write in order to assail an admissions program that is not the one UNC has crafted,” and said Thomas “demonstrates an obsession with race consciousness that far outstrips my or UNC’s holistic understanding that race can be a factor that affects applicants’ unique life experiences.” Tempers always fray at the end of a term, but this felt particularly personal — less heartfelt disagreement, in Roberts’s words, than mutual disparagement.
What to make of this tumultuous term? This is a court as splintered as it is divided: There are six undoubtedly conservative justices, but they represent different flavors and degrees of conservatism; rather than joining forces, as they did in 30 percent of cases last term, they are often split among themselves.
If the court last term seemed fearless, as University of Chicago law professor William Baude put it, in this term, it seemed more skittish about jettisoning precedent and dramatically reshaping the law: Of a half-dozen cases in which the justices were asked to overrule cases, they explicitly overturned none — although the precedent that was implicitly overturned, the 2003 affirmative action case Grutter v. Bollinger, was as major as they get, short of ditching Roe v. Wade.
The court went out of its way to accept groundbreaking cases and, indeed, broke some unfortunate new ground; in addition to the final spate of decisions, it gutted the Clean Water Act. But in notable instances, it stopped short of wreaking major damage: It rebuffed invitations to endorse the independent state legislature theory, declined to invalidate the Indian Child Welfare Act, upheld the Biden administration’s ability to set immigration enforcement priorities and, perhaps most surprisingly, rejected Alabama’s invitation to further eviscerate Section 2 of the Voting Rights Act. Roberts, no fan of that law, wrote the opinion, expressing displeasure with “Alabama’s attempt to remake our §2 jurisprudence anew.”
One measure of the term: Thomas dissented more often than Sotomayor. Another measure: The American Civil Liberties Union ended the term with an 11-7 won-loss record in cases where it was a party or filed an amicus brief. Its record last term was 5-13, according to legal director David Cole.
“This is not a normal court,” Biden said Thursday after the affirmative action ruling. As a purely historical matter, he’s correct: A supermajority of this kind hasn’t existed for nearly a century. But precisely what this configuration means is still evolving. A lesson of this term is that the conservative justices have not coalesced around a unified vision of when and how aggressively they want to deploy their newfound power.
