June 24 marked two years since the US Supreme Court overturned the landmark Roe Vs Wade judgment that stood for 50 years, giving individual states the power to decide on abortion. Following the order, several Republican-dominated states moved quickly to enact restrictive laws, curtailing or severely limiting abortion rights. The move has been the result of the US Supreme Court's shift to the right, aided in no small measure by Donald Trump nominating three conservative justices to the court.
And the conservative court seems to be playing a key role in the presidential elections as well, giving decisions that energise Trump's MAGA base. Moreover, if the elections end up legally contested, the court is likely to step in, like it did back in 2000.
The conservative majority in the Supreme Court—the six Republican appointees–Chief Justice John Roberts, along with Justices Neil Gorsuch, Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett—are actively leading its right-ward shift. Of the six, Roberts and Alito were appointed by George W. Bush, Thomas by George H.W. Bush, and Gorsuch, Kavanaugh and Barrett by Trump.
And this conservative bend is clearly visible, not just in the abortion case, but also on a range of issues such as immigration, racial equality, LGBTQ rights, gun rights, death penalty, environmental protection and the separation of the church and the state. In most cases, the conservative justices have been opposed to the three Democratic appointees–Justices Sonia Sotomayor and Elena Kagan (both appointed by President Obama) and Ketanji Brown Jackson (appointed by President Biden).
The conservative majority, for instance, has narrowed the scope of victims of constitutional violations to sue state and federal government officials—in simple terms, the court held in Vega Vs Tekoh (2022) that police officers could not be sued, even for violating something as basic as Miranda rights. The Miranda warnings include informing a suspect that he or she has the right to remain silent upon arrest or before making a statement to the police. The court held that receiving Miranda warnings was not a right in itself, overturning a much-established precedent.
Similarly, the six conservative judges ruled last year that affirmative action in college and university admissions violates equal protection guaranteed by the Constitution. Their order came in two cases involving admissions at Harvard University and the University of North Carolina.
"Many universities have for too long wrongly concluded that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learnt, but the colour of their skin," wrote Roberts in the majority opinion. Biden, meanwhile, said that he strongly disagreed with the decision. "This is not a normal court," he said. "Discrimination still exists in America."
In a big blow to LGBTQ rights, the conservative judges ruled that civil rights laws must sometimes give way to religious objections. For instance, in the 303 Creative LLC et al Vs Elenis et al case (2022), the court ordered that the proprietor of a wedding website business could not be forced to serve a same-sex couple because that would hurt her religious beliefs.
The conservative majority has also not spared longstanding precedents in the separation of church and state. In Carson Vs Makin (2022), it ruled that religious expression in state-funded schools were protected by First Amendment rights. In another case, it sided with a high school football coach who had continued to pray with his students, both during and after games, notwithstanding the school district’s opposition. In his majority opinion, Justice Gorsuch wrote that it was a case of the government "punishing an individual for engaging in a brief, quiet, personal religious observance".
The Conservative court did away with a century-old New York law which required a "proper cause" to carry a handgun outside the home. Just last week, the court lifted a ban on bump stocks, a gun accessory used in America's deadliest shooting. Trump banned bump stocks after they were used in a shooting that killed 60 people at a concert in Las Vegas in 2017.
On environment, the court rejected the Environmental Protection Agency’s authority to address climate change, and in the case of death row inmates, the court has been quick to dismiss legal challenges and emergency petitions.
The Roberts court also held that President Biden did not have the authority to cancel student debts. Through its decision in Biden Vs Nebraska (2023), it upended the Biden administration's $430 billion debt forgiveness plan, affecting 40 million eligible students.
Apart from such ideological concerns, there are also ethical concerns about the conduct of some of the conservative judges, especially the senior-most ones. It was revealed last year that Justice Thomas accepted gifts and luxury travel from billionaire Republican megadonor Harlan Crow, without disclosing it as mandated by federal laws. Thomas also had several real estate dealings with Crow. Justice Alito, meanwhile, flew an inverted American flag outside his Virginia home after the 2020 elections, even as the Supreme Court was considering an election-related case.
Some of his neighbours, in fact, reported it to the Supreme Court. Last year, Alito had also flown a second flag, known as the "Return to Heaven" flag, outside his beach house in New Jersey. The flag, which originated during the days of the American Revolution, has more recently been used by religious nationalists and pro-Trump demonstrators during the Capitol Hill attacks. Despite several appeals to recuse himself from election-related cases, Alito has refused to do so.
Such obvious partisanship on the part of the justices could be a major concern in election-related cases, especially in an election season. And many observers worry that it could benefit Trump.
When Trump approached the Supreme Court claiming absolute immunity in the Capitol Hill attack case, it was expected that the court would dismiss the challenge outright. But the court admitted the petition. On March 6, the top court announced that it would hear the case on April 25, the final day of its argument calendar this term. The decision came as a big help for the Trump presidential campaign.
Trump had approached the apex court claiming immunity after federal prosecutors charged him with leading a pressure campaign against Congress to overturn the 2020 presidential election results, which led to the January 6 attacks on the US Capitol and criminal conspiracy to nullify the results in Joe Biden's favour in swing states like Georgia and Arizona. A federal grand jury indicted him for conspiring to defraud the United States and to overturn the election result.
Trump was supposed to stand trial on March 4 before US District Judge Tanya Chutkan, but the case now remains frozen because of the Supreme Court's intervention. Jack Smith, the federal prosecutor handling the case, had asked the Supreme Court to take up the case last December itself, bypassing the federal appellate court review, arguing that there was "a national interest in seeing the charge against Trump resolved promptly because they struck at the heart of American democracy". However, the Supreme Court ordered that the appellate court should hear the case first.
Subsequently, the US court of appeals for the DC circuit took up the case, and it rejected Trump's plea after exploring all possible legal issues. Trump then moved the Supreme Court. Smith asked the top court to dismiss the appeal outright, or, if the court really wanted to intervene, expedite the proceedings. But the court set oral arguments on April 25, the last day it could possibly choose for this term.
While the court chose to delay the Trump case as much as possible, it can act fast when it wants to. In 2000, when the presidential election results hinged on the outcome of the recount in Florida—the poll was too close to call in the sunshine state—the court was quick to intervene. The Florida secretary of state, who was appointed by governor Jeb Bush (George W. Bush's younger brother), had certified Bush to be the winner. On Democratic candidate Al Gore's challenge, the Florida supreme court ordered a selective manual recount of the ballots. Bush went to the Supreme Court and asked for a stay on the recount. The Supreme Court allowed the stay and later permitted the Florida secretary of state's decision to stand, declaring Bush the winner.
The Supreme Court was also relatively quicker in overturning a decision by the Colorado administration to bar Trump from running as a candidate in the presidential elections. The court decided to take up Trump's appeal in two days, conducted a quick hearing and gave its verdict just over two months from the start of the process. While the ruling was specific to Colorado, it also applies to other states, undercutting efforts to bar Trump by several state administrations. The court held that only the Congress had the power to disqualify a candidate under the anti-insurrection clause.
In the immunity case, the court will now decide “whether and if so to what extent does a former resident enjoy immunity from criminal prosecution for conduct alleged to involve official acts during his tenure”. The decision on the presidential immunity is expected to come anytime now, possibly on June 27 or 28. If the court finds Trump has immunity, the case ends there, giving Trump a free pass and setting an alarming precedent. But such a determination appears highly unlikely. Even with its conservative-heavy composition and with three judges appointed by Trump himself, the court is expected to reject the immunity claim as it prima facie appears really frivolous, something which all the lower courts agreed upon.
Even if the court rules that Trump enjoys no immunity, there will not be enough time to take the judicial process to a logical conclusion before the elections. If Trump wins the elections, then it is easy for him to subvert the whole process. He then gets to choose the attorney general who will oversee the trial. And in the unlikeliest scenario of him getting convicted despite that, he could very well pardon himself or claim presidential immunity once again, although both would be unprecedented.