Conservative Supreme Court Justices: To Stick or to Twist?

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The author is a former member of the New York Times editorial board and the author of ‘Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America’.

In 1974, Allan Bakke sued the University of California after being rejected from medical school. Since then, conservatives have attempted to eliminate affirmative action in university admissions, but their efforts have been unsuccessful. However, in a recent ruling, the Supreme Court declared considering race in college admissions unconstitutional. This ruling, as well as other conservative victories such as allowing a Christian web designer to refuse same-sex wedding website designs and invalidating President Joe Biden’s student loan forgiveness program, have been decided by a 6-3 vote. These decisions reflect the impact of a conservative supermajority in the court that has been reshaping laws and society in a manner that negatively affects marginalized groups.

The current conservative composition of the Supreme Court is the result of a long-term conservative strategy. In the late 1960s, Richard Nixon aimed to dismantle the progressive Warren court, which had played a significant role in desegregating schools, protecting women’s rights, and defending the rights of the poor. Nixon appointed justices who aligned with conservative ideals and established a conservative majority that continues to influence the court’s decisions. Although previous courts with conservative leanings did not abolish abortion rights or affirmative action due to moderate conservative swing justices, the appointments made during Donald Trump’s presidency changed the dynamics. The court’s current composition, defined by a supermajority, has successfully overturned decades of abortion and affirmative action precedents.

The future decisions of the Supreme Court are uncertain. The court may shift further to the right regarding affirmative action and abortion. Questions remain about whether the race-neutral principles established for college admissions apply to government and corporate hiring and minority contracting programs. Additionally, lower courts disagree on whether the abortion pill mifepristone should remain available. Court-watchers predict that the Supreme Court will ultimately determine the fate of the drug. It is possible that the conservative supermajority will seek to maintain momentum by ending affirmative action in other areas and restricting gay rights. However, some observers point out signs of moderation, such as the court’s recent ruling in favor of civil rights advocates in an Alabama congressional redistricting case.

External factors may also influence the court’s direction. Public confidence in the court has reached a record low, with only 25% of Americans expressing confidence in it. Furthermore, recent scandals involving unreported gifts from billionaires to two justices could lead to hearings and even potential impeachment if Democrats regain control of the House. Proposed bills to impose term limits on justices and expand the number of justices beyond nine highlight the growing backlash against the court. The court stands at a crossroads and must decide whether to continue disregarding popular sentiment or to address the damage caused to its reputation by reevaluating its approach.