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A year after striking down the constitutional right to abortion, the US Supreme Court’s conservative wing has continued to make a dramatic imprint on American society, all while facing rising scrutiny over questions of legitimacy and ethics.
As has become custom, the court saved its blockbuster decisions for the final days of its legal term, which typically wraps up at the end of June. On Thursday, the court held that college admission programmes taking race into account — a cornerstone of efforts to diversify higher education — violate the constitution.
The next day, it struck down President Joe Biden’s $400bn student debt relief programme, then sided with a Catholic website designer who argued she should not be forced to serve same-sex couples, a decision that dissenting liberals said would pave the way for more anti-LGBTQ+ discrimination.
Decisions in all three cases were split along ideological lines, with the six conservative justices lining up against its liberal wing, in the latest demonstration of how the court’s right-leaning majority has solidified its decision-making power since Amy Coney Barrett took office in October 2020, giving them a 6-3 advantage.
“Each time there is a discernible shift in the balance of power on the court, that tends to be followed by several years of more controversial decisions,” said Michael McConnell, professor at Stanford Law School.
The Supreme Court has often been a polarising institution, with a handful of lifetime appointees delivering consequential decisions on divisive issues. But as the court’s conservative majority has grown bolder, it has attracted more criticism, raising questions about whether changes are needed to arrest its influence.
“I think that some of the court are beginning to realise their legitimacy is being questioned in ways that it hadn’t been questioned in the past,” Biden told MSNBC on Thursday, suggesting that even Chief Justice John Roberts shared the concern. Some Democrats have urged the president to “pack the court” by adding new left-leaning judges to counter the conservatives’ power.
The decision last year to overturn Roe vs Wade, which had enshrined the constitutional right to abortion for nearly 50 years, turbocharged the pushback against the high court as a majority of Americans disagreed with the ruling. Polls at the end of last term showed confidence in the court had plummeted to record lows.
Confidence continued to decline after a pair of ethics scandals embroiled two of the court’s staunchest conservatives, Clarence Thomas and Samuel Alito. ProPublica reported earlier this year that Thomas had been the recipient of lavish gifts and hospitality from Harlan Crow, a Republican political donor. Weeks later it reported Paul Singer, a hedge-fund billionaire involved in several cases that went before the court, had paid for Alito to travel on a private jet to Alaska for a fishing trip.
According to a Marquette Law School poll in May, 59 per cent of Americans disapproved of the Supreme Court’s work, after the report about Thomas was released. That was 6 percentage points higher than in January.
Both judges have denied doing anything improper, and said they had made all the disclosures they had believed to be necessary.
Still, the controversies have stirred anger, which was on display at a protest in Washington last month on the anniversary of the Roe reversal. One protester supporting abortion rights held a sign with drawings of Thomas and Alito that read: “It’s called the high court because you can buy justices at 30,000 feet.”
Nadine Seiler, a 58-year-old protester, held a sign reading “Scotus is illegitimate”. The court had “no ethics”, she said. “Unless Roberts stands up and has some kind of ethics for the court, the court is illegitimate.”
Justices file financial disclosure reports annually. But some legal experts argue ethics rules and how they apply to the Supreme Court should be clarified.
“Liberals think that what Thomas and Alito have done is abominable. Conservatives believe that the criticism is ginned up and politically motivated, and if you really look carefully at the facts and the rules that were in effect, there was nothing wrong,” said Jeannie Suk Gersen, professor at Harvard Law School. “It truly is in the eye of the beholder.”
The scandals have piled pressure on Roberts, who has often spoken of the need to preserve the Supreme Court’s institutional integrity.
Following the reports on Thomas, Roberts said the court was considering steps to ensure it would “adhere to the highest standards” of ethical behaviour while maintaining its “status as an independent branch of government”, without elaborating further, according to CBS.
Nevertheless he declined a request from the Senate judiciary committee to testify about Supreme Court ethics, stating in a letter that such testimonies are “exceedingly rare . . . in light of separation of power concerns and the importance of preserving judicial independence”.
Adam Mortara, a conservative activist and lawyer, argued that questions about the court’s legitimacy stemmed from disgruntlement about its legal views, pointing out that liberal justices have also faced questions about their disclosures. “It’s not really neutral scrutiny,” he said.
Despite the increasingly polarised perception of the court, some important decisions this term were decided by majorities comprising a mix of liberal and conservative justices. Some legal experts were surprised when the court protected voting rights in a pair of cases in which it sided with lower courts in North Carolina and Alabama that upheld challenges to Republican-drawn electoral maps. Both majority decisions were written by Roberts.
Neil Siegel, professor at the Duke University School of Law, said that until Thursday, “I would have described the term as ideologically quite mixed, less predictable than last term.” But the trio of rulings on student debt, college admissions and the website designer had made the court “predictably very aggressive, very conservative”.
The court has now adjourned for the summer, and in the next term it is likely to continue to steer into controversy. It has already agreed to hear cases on whether people subject to court orders related to domestic violence can possess guns and whether the Securities and Exchange Commission’s in-house judges are legitimate, among others.
The increasingly prevalent view of a polarised Supreme Court reflects the growing political divisions in American society. “Polarisation affects the public’s suspicions, scepticism, criticism of justices,” said Gersen.
In light of this polarisation, “clear rules that are clearly binding will give everyone more peace of mind and certainty as to what is and is not allowed”, she added.
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