The Supreme Court delivered surprising wins to liberals this week in a pair of blockbuster decisions that forbade businesses from firing workers base on their sexual orientation or gender identity and halted the Trump administration’s efforts to end the Obama-era DACA program, which shields the young migrants known as “Dreamers.”
But those on the left still see potential danger ahead. In the coming days, the top court is expected to hand down a decision in a high-profile abortion dispute that could provide signals about how the panel, which counts two appointees of President Donald Trump in its conservative majority, will treat reproductive rights in the years to come.
“Kind of feels like we’re being softened up for the blow, huh?” Sasha Samberg-Champion, a liberal civil rights lawyer and former Justice Department attorney, wrote in a representative post on Twitter on Thursday, after the DACA decision was released.
“Progressives must keep their guard up,” Brian Fallon, the executive director of Demand Justice, a Supreme Court activist group, said in a statement.
Meanwhile, the decisions have unsettled those on the right, who have criticized even the Republican-appointed justices for their votes. Sen. Josh Hawley, R-Mo., called it the “most disappointing week at #SCOTUS in years.”
The fight over abortion has animated clashes over the Supreme Court for decades, and continues to be a battleground in the 2020 presidential race between Trump and presumptive Democratic nominee Joe Biden.
The case, June Medical Services v. Russo, No. 18-1323, concerns a Louisiana law that requires abortion providers to have admitting privileges at a hospital within 30 miles of their clinic. A federal district court found that it would limit Louisiana, a state of nearly five million people, to just one doctor providing abortions.
June Medical Services was the subject of outsized political attention even before the top court handed down its opinions in the LGBT worker and DACA cases.
As a result of those decisions, though, the case has gained even more weight as a loose barometer of the court’s conservatism during a high-stakes election year in which Trump has sought to make both abortion and his right-leaning court picks major elements of his campaign.
The case is the first abortion case to be argued at the court since Trump’s nominees, Justices Neil Gorsuch and Brett Kavanaugh, joined the bench. As a candidate, Trump pledged to nominate justices who would “automatically” overturn the landmark abortion decision Roe v. Wade.
Among the reasons that the case has caused so much alarm among reproductive rights activists is that the law in question is nearly identical to a Texas abortion measure that the Supreme Court struck down just four years ago.
The fact that the court agreed to hear a case involving a law so similar to the one it struck down in 2016 suggests that the court, with its new conservative majority, could be ready to pare back abortion precedents set when the top court was more liberal.
It’s quite possible, though, that the court hands another win to liberals.
During oral arguments in March, Chief Justice John Roberts signaled that he was open to striking down the law, though such questions are not always predictive of how a justice will vote. Gorsuch and Kavanaugh provided few clues about their thinking at the time. In an unusual move, Gorsuch asked no questions at all.
A decision in the case will likely be handed down by the end of June, though it could be delayed as a result of precautions taken in response to Covid-19.
The unpredictability of the high court showcases the difficulty of Trump’s efforts to make his Supreme Court nominees a campaign talking point. While Trump often boasts of Gorsuch and Kavanaugh at speeches and campaign rallies, his tone was far more sour this week.
“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives,” Trump wrote in a post on Twitter shortly after the DACA decision was released on Thursday.
“The recent Supreme Court decisions, not only on DACA, Sanctuary Cities, Census, and others, tell you only one thing, we need NEW JUSTICES of the Supreme Court,” he wrote in another. “If the Radical Left Democrats assume power, your Second Amendment, Right to Life, Secure Borders, and Religious Liberty, among many other things, are OVER and GONE!”
To some extent, Trump’s attacks on the court are in line with his tangles, dating back years, against Roberts, an establishment Republican who was appointed by then-President George W. Bush.
Carrie Severino, who leads the conservative Judicial Crisis Network, an influential activist organization, said in an interview that decisions like the DACA decision, written by Roberts, “are part of the reason that we have President Trump.”
“The chief justice has created a real pattern of being complicit in efforts to weaponize the court as a tool against the Trump administration,” Severino said.
Complicating Trump’s maneuvering, however, is the role played by his own justices in the legal defeats.
While both Gorsuch and Kavanaugh were in the minority in the DACA dispute, Gorsuch was the author of the court’s Monday decision applying Title 7 of the Civil Rights Act to LGBT workers. The vote in that case was 6-3, with Roberts joining Gorsuch and the court’s liberals, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
In the sanctuary case the president appeared to cite, the administration failed to garner even four votes to have the court review the administration’s challenge to a California law limiting state and local cooperation with federal immigration authorities.
Likewise, it only would have taken four votes for the court to agree to hear any of 10 Second Amendment cases that the court rejected on Monday, in a move that disappointed gun-rights activists. Justice Clarence Thomas, one of the most conservative judges on the top court, dissented from his colleagues’ decision not to hear one of the cases.
While the vote tallies were not published in those disputes, it would not have required Roberts or any of the court’s liberals to vote to take them up in the court’s next term.
Melissa Murray, a law professor at New York University and the co-host of the Supreme Court podcast Strict Scrutiny, called Trump’s messaging around the Supreme Court “a little idiosyncratic and perhaps incoherent.”
“There is at once some dissatisfaction that his conservative majority isn’t acting in the way he wants, but also a realization that judges helped get him elected,” she said.
Of the most recent week at the Supreme Court, Murray pointed out that the legal issues at play in June Medical Services are distinct from those that were argued in the LGBT rights and DACA cases.
But, she said, “one thing you might glean from this week is that the chief justice remains very much an institutional steward of the court and its legacy.”
In that sense, it is possible that Roberts’ shepherding of the court’s reputation could play some role in all three cases.
“He might be concerned with the perception that the court is in the pocket of the Trump administration,” Murray said.