Conservatives Won Big at Supreme Court Even Before Kennedy Quit

(Bloomberg) -- Even before Justice Anthony Kennedy announced his retirement, the U.S. Supreme Court’s term had become a conservative rout.

The Supreme Court closed its nine-month term this week with a barrage of 5-4 rulings, most of them with the court’s five Republican appointees on top.

In the final nine days alone, conservatives won on President Donald Trump’s travel ban, union fees, antitrust liability, Texas voting districts and anti-abortion pregnancy centers. Those added to earlier rulings that curbed workers’ class-action lawsuits and gave states more power to purge people from voting databases.

"This may go down as the most conservative, ideologically divided Supreme Court term in the nation’s history," said Tom Goldstein, a Washington appellate lawyer who founded the website. "The ideological blocs lined up on a huge number of large and small issues, and the left got routed."

The retirement of Kennedy -- the court’s swing vote for the past decade -- gives Trump the chance to add a fifth solid conservative vote to the court. That puts conservatives in striking distance of their long-held goal of overturning the Roe v. Wade abortion-rights ruling, and may move the court to the right on other issues including gay rights, affirmative action and the death penalty.

The just-finished term underscored the importance of the newest justice, Trump appointee Neil Gorsuch, and the bold Republican move that made his nomination possible. Senate Republicans blocked a vote on President Barack Obama’s 2016 nomination of Merrick Garland, keeping a seat on the court open for Trump to eventually fill.

Gorsuch joined his fellow conservatives -- Kennedy, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito -- in virtually all of the ideologically divisive cases, leaving liberals to lament how different the term might have looked with Garland in Gorsuch’s chair.

"By blocking the confirmation of Merrick Garland, the Senate is responsible for this conservative activist Supreme Court," said Caroline Fredrickson, president of the progressive American Constitution Society.

Changing Sides

Justice Department officials noted that the court agreed with the government in four high-profile cases in which the Trump administration changed what had been the Obama position. Those included the union-fee, arbitration and voter-purge cases.

"The favorable Supreme Court decisions in all four cases reflect that we took the proper course of action,” Attorney General Jeff Sessions said.

The biggest victory for the left came on digital privacy, a subject that hadn’t previously divided the court ideologically. Roberts joined the liberals -- Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor -- to rule that law enforcement officials generally need a warrant to get mobile-phone tower records that show someone’s location for a week or more.

Roberts pointed to the "depth, breadth and comprehensive reach" of the location data held by wireless companies.

Gay-Wedding Cake

On other issues, liberals managed to avert major losses, but perhaps only temporarily. The court backed a Colorado baker who refused to make a wedding cake for a gay couple but did so on narrow grounds, without resolving broad questions about the rights of businesses to refuse to provide services for same-sex ceremonies.

Kennedy’s departure means a reconstituted court could be more receptive to the claims of business owners when the issue returns to the high court.

Similarly, the court ruled narrowly in two cases liberals had hoped would mean that voting maps could finally be challenged as excessively partisan. Although the court didn’t explicitly preclude those suits, Kennedy’s retirement reduces the chances that five justices will ever be willing to strike down partisan gerrymanders.

Unlike in previous terms, Kennedy didn’t join the liberals in a single 5-4 majority.

Some of the conservative wins were foreshadowed. In the union-fees case, the court said public-sector workers have a First Amendment right to refuse to pay a share of the cost of collective bargaining. The court’s conservatives had appeared poised to reach that conclusion in a different case two years ago, only to lose their fifth vote when Justice Antonin Scalia unexpectedly died.

Chamber of Commerce Wins

Businesses were among the term’s big winners. The Chamber of Commerce won nine of the 10 argued cases in which it filed a brief.

That included a 5-4 ruling that said employers could enforce arbitration agreements in which workers agree to forgo class action lawsuits. The ruling, which divided the court along ideological lines, extended a line of pro-arbitration decisions that have cheered businesses looking to cut litigation costs.

The same five-justice majority said that victims of overseas atrocities can’t use a centuries-old law to sue foreign corporations for complicity. The court also threw out a government antitrust suit against American Express Co.

"It’s been a pro-business court for some time," said Lisa Blatt, a Washington appellate lawyer with Arnold & Porter. "I don’t think anything has changed."

That isn’t likely to change going forward either, though the court will be losing one of its most business-friendly justices in Kennedy.

But on other issues, Kennedy’s departure means an already conservative court may get even more conservative.

©2018 Bloomberg L.P.