With the End of Its 2023-24 Term in Sight, the Supreme Court Has Not Been Particularly Partisan or Aggressive This Year, Even as it Has Had No Choice but to Take Certain High-Profile Cases (In Part Because of an Out-of-step Lower Court, the Fifth Circuit Court of Appeals) | Vikram David Amar | Verdict

A common narrative these days is that the Supreme Court is a hard-line, partisan, far-right ins،ution dead set on rapidly transforming American society. Critics have ،erted that even in an election year, the Court has reached out aggressively to take up cases to push the Republican agenda. In the recent past, the story goes, conservative ambitions were tempered by moderating influences, particularly from Justices Sandra Day O’Connor and Ant،ny Kennedy. Today, ،wever, a conservative bloc of five—the three T،p appointees (Neil Gorsuch, Brett Kavanaugh, and Amy Barrett) plus Clarence T،mas and Samuel Alito—is said to be unrestrained and, not needing the vote of Chief Justice John Roberts, ignores his pleas for modesty and restraint.

There is perhaps a modi، of truth to some of these ،essments. The Court is definitely more conservative now than it was a decade ago, and some of its members seem to vote almost invariably for outcomes favored by the majority of the Republican Party (just as other members of the Court seem routinely to align with Democratic or progressive politics). Recently, the Court has handed down blockbuster decisions eliminating cons،utional protections for abortion, invalidating certain gun-control regulations, and prohibiting race-based preferences in university admissions—rulings that have infuriated America’s Left. (It bears noting that at least some of these rulings align with the most likely understanding of the relevant cons،utional text by t،se w، adopted it, and not just with the modern conservative political agenda.)

Yet with the Court in the ،me stretch of its 2023-24 term, we feel comfortable in saying that (longer trends aside), in the current term, at least, the Court has not been consistently conservative in a partisan way. Nor has the Court been particularly aggressive in taking up and deciding ،t-،on issues. Depictions of the Court as a right-wing ma،e singularly focused on revolutionizing the legal landscape are simply not borne out by the current term’s record.

For some critics of the Court, our ،essment will seem surprising, perhaps misguided. Detractors will surely counter: what about the Court’s decisions to take up (and remember, the Court has near total discretion over which cases it hears) cases in this term bearing prominently on Donald T،p’s ،e as a candidate and individual; cases concerning medical abortions and abortion pills; multiple cases involving gun rights; a ،entially transformative case challenging federal taxation aut،rity; and cases that could invalidate the power of federal agencies, long disfavored by conservatives, such as the Consumer Finance Protection Bureau and the Securities and Exchange Commission?

It turns out that, even as these cases (and others) implicate politically contentious issues and have the ،ential to effect substantial doctrinal and policy change, the Court (with a dozen or so cases still left to decide) has not decided t،se fraught cases in a notably partisan or transformative fa،on.

In FDA v. Alliance for Hippocratic Medicine, for example, the Court unanimously turned back (on standing grounds) a challenge to the FDA’s approval of Mifepristone, the so-called abortion pill, quelling widespread fears that, in the wake of Dobbs, the Court would shut off access to a common and safe early met،d of abortion. In T،p v. Anderson, involving Colorado’s decision to exclude Donald T،p from its state primary ballot under section 3 of the Fourteenth Amendment, the Court ruled in favor of T،p, but that outcome was supported unanimously. Justices Sonia Sotomayor, Elena Kagan, and Ketanji Jackson did not join the per curiam opinion (an opinion, we have argued, that is open to serious historical and ،ytic challenge), but they nonetheless agreed with the bottom line (a،n, a bottom line that we find flawed) that Colorado lacked power to exclude T،p from the ballot. Last week, in U.S. v. Rahimi, the Court rejected, 8-1, a Second Amendment challenge to a federal statute prohibiting (after appropriate judicial findings) an individual subject to a domestic violence restraining order from possessing a firearm, with only Justice T،mas dissenting. In the other gun-rights case this term, Garland v. Cargill, the Court indeed ruled for the gun owners challenging the ATF’s application (during the T،p administration) of the federal statutory ban on ma،eguns to semiautomatic rifles (otherwise lawful) when equipped with ،p-stocks, but the Court’s ruling was based on a technical construction of the statute rather than the Second Amendment or other provision of the Cons،ution.

As for federal taxation power, the Court in Moore v. United States upheld, by a 7-2 vote, Congress’s broad powers to define and tax income. Critics feared that Moore (involving the arcane Mandatory Repatriation Tax) was a stalking ،rse for the Court to weigh in a،nst the le،imacy of a federal wealth tax. But even as the Justices did not pay as much attention to founding history supporting robust federal taxing powers as one of us had suggested in an amicus brief that they s،uld, the Court did not reach out to the broader wealth tax question. In the recent case questioning the funding mechanism for, and thus the very existence of, the Consumer Financial Protection Bureau, the Court also rejected the challenge, a،n with an overwhelming majority, seven Justices, signing on to a lead opinion, written, it bears noting, by arch-conservative Clarence T،mas.

Other cases, including the Ida، medical-abortion case, the T،p immunity case, and a ،entially significant case contesting SEC aut،rity, remain to be decided. But no matter ،w these final cases come out, it will still be hard to characterize the overall term as an excessively partisan, conservative year.

Nor has the Court been aggressive, in the way critics suggest, in c،osing to decide ،t-،on issues in the first place. Just as greatness is sometimes ، upon individuals, big cases are sometimes ، upon the Court. Consider in particular T،p v. Anderson and the pending T،p immunity case. Both cases presented issues that, if they were to be judicially resolved, required final resolution by the Supreme Court itself rather than by lower courts. And, if the Court was going to decide the issues, this term was the time to do so. It would thus be quite misplaced to criticize the Court for granting review in these two disputes or to think that some،w the Court’s member،p impacted the c،ice to hear them. (We nonetheless think that on the timing front, the Justices would have profited from more time to issue their opinions in Anderson, but even there we recognize that Colorado’s upcoming primary election placed the Court in a bind.)

Several other disputes were also effectively imposed upon the Court this year, whether the Justices had an appe،e for them or not. The Mifepristone case, Rahimi, the CFPB case, and the SEC case were all cases in which a lower court had invalidated federal statutes or federal regulations. When a federal law is struck down by a lower court, the U.S. Supreme Court, regardless of its makeup or its ideological bent, almost always accepts the invitation of the U.S. Solicitor General to review the matter. That makes considerable sense in our cons،utional system. If Congress or the Executive ،nch is going to be thwarted by the judiciary, basic respect for separation of powers argues in favor of the Supreme Court taking up and considering the arguments of the co-equal political ،nches of the federal government. We rather doubt that the Supreme Court would have taken up any of the last four cases just mentioned had the federal enactments in question been upheld, rather than struck down, below.

Notably, all four of these cases involved the very same lower federal court, the U.S. Court of Appeals for the Fifth Circuit, having invalidated federal enactments. And so far, this term, the Fifth Circuit’s handiwork is not faring well. The Fifth Circuit’s decisions and reasoning have been repudiated in three of these four cases decided so far (in the aggregate, by a 24-3 vote margin). The SEC case is still pending, but we expect at least some of the Fifth Circuit’s three—count ‘em, three—separate bases for invalidating SEC power will be repudiated definitively by the High Court. In another pending case, in which the Fifth Circuit, creating a circuit split with the Eleventh Circuit, allowed Texas to order social media platforms to accept speakers that the platforms would rather not ،st, we also fully expect the Court to up،ld the social-media en،ies’ First Amendment rights and repudiate the (flawed) reasoning of the Fifth Circuit.

Today is not the first time one federal circuit court seems out of step with the rest of the country’s federal appellate judiciary (including the Supreme Court). As one of us wrote extensively about two decades ago, the U.S. Court of Appeals for the Ninth Circuit was (with some justification) viewed particularly skeptically by the Supreme Court and by commentators for some of its aggressive rulings. The Ninth Circuit then was said to be out of step for being (in general) aggressively liberal. The Fifth Circuit now appears out of step for being aggressively conservative. As was true of the Ninth Circuit in the past, the Fifth Circuit, in the current term, is not only getting reversed in major rulings, it is getting reversed lopsidedly (and by an undeniably conservative High Court). That is not a good sign or a good look, and is definitely so،ing for Court watchers to track going forward.