Progressives’ Supreme Court Victories Will Be Fleeting

The groundwork is now in place for major conservative wins in the years ahead.

PrintCollector / Getty / Katie Martin / The Atlantic

In several big-ticket cases this term, the conservative Supreme Court appeared to give significant wins to progressives. On issues including abortion, immigration, and LGBTQ equality, a majority of the Court voted for seemingly progressive results. And in the subpoena cases issued on the last day of the term, the Court rejected the president’s sweeping argument that his personal financial records are off-limits to Congress and state grand juries. But on closer inspection, these opinions and others actually gave conservatives some important wins as well.

One of the most crucial apparent victories for progressives came in the Louisiana abortion case. The Supreme Court struck down Louisiana’s restrictive abortion law that would have required all abortion providers to obtain admitting privileges at hospitals within 30 miles of where they perform abortions. Four years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court invalidated the same law when Texas enacted it.

The result in the Louisiana case was certainly a progressive win. But the reasoning in Chief Justice John Roberts’s opinion spells trouble for abortion rights down the road. The majority opinion, written by Justice Stephen Breyer, said that the law was invalid because it offered very little benefits and imposed some rather substantial obstacles. The chief justice wrote separately to say that he agreed the Louisiana law was invalid, but only because he believed that the Court must stay in line with its decision four years ago.

Significantly, the chief justice also hinted that he agreed with his more conservative colleagues that the reasoning in the Court’s prior decisions protecting abortion rights should be narrowed if not abandoned. The conservative majority therefore seems poised to apply a watered-down standard to future cases that do not involve laws the Court has previously struck down, or that involve laws with less dramatic effects. (The Louisiana law could have closed two of the three abortion clinics in the state.)

Under the chief justice’s approach, a state could pass a law restricting abortion for almost any reason and not have to prove that the law produced any actual health or safety benefits for women. That legal standard could allow states to enact medically flimsy health restrictions, whereas the Court’s previous standard required states to demonstrate, with evidence, that laws actually benefited women’s health and safety. Indeed, after the Court decided the Louisiana case, it instructed the lower courts to revisit two decisions that invalidated abortion restrictions, including one that struck down a law that would have required women to obtain an ultrasound 18 hours before they have an abortion.

The Court’s decision on the Deferred Action for Childhood Arrivals program also contains some ominous signs for progressives. Here, too, the opinion gave progressives a significant win by ensuring that DACA recipients do not suddenly become vulnerable to deportation.

But again, the reasoning in the decision provided a boon to the conservative legal movement. The Court began its analysis with a statement that the Trump administration “may rescind DACA” so long as it follows the correct procedures. The Court, however, concluded that the administration’s initial memo rescinding DACA did not follow the appropriate procedures, because the administration did not adequately spell out its decision-making process, including whether it had considered alternatives to ending the entire DACA program or DACA recipients’ reliance on the program.

Moreover, the DACA decision narrowed the circumstances in which courts will find that so-called facially neutral policies, meaning those that do not mention race, are nonetheless unconstitutional. Facially neutral policies are unconstitutional when motivated by racial discrimination. The Court’s analysis in the DACA case, which concluded that the challengers did not establish that racial discrimination motivated the rescission, makes it more difficult to prove that racial discrimination influenced a government policy. The chief justice said that the president’s racist statements about immigration, including those about how Mexicans are criminals and rapists, were “unilluminating,” and did not suggest that animus toward immigrants led to the end of DACA.

The further whittling away of legal protections against discrimination was evident in several of the Court’s other cases this term. One was a little-noticed decision, Comcast v. National Association of African American–Owned Media, that formally ratcheted up the legal standard for proving racial discrimination in contracting.

But the arguably more significant decisions came in cases for which the Supreme Court never heard oral arguments. The Court put on hold two lower-court decisions that loosened state restrictions on voting in light of the coronavirus pandemic. The plaintiffs challenging the voting restrictions argued that racial minorities, Black voters in particular, would be especially hurt by them because of the higher incidence of the coronavirus in Black communities, the higher death rates from the coronavirus in Black communities, and the voting restrictions’ disproportionately adverse effect on Black communities. In one case, a Wisconsin court extended the deadline for voting absentee; in the other, an Alabama court loosened some of the requirements for voting absentee. In both cases, the Supreme Court, by a 5–4 vote, with the conservatives in the majority, stayed the lower-court decisions, thus allowing states to enforce restrictive voting laws in the midst of a pandemic, making voters choose between risking their life and not voting at all.

Finally, there was the Title VII decision. Here, too, the outcome was a major win for a progressive legal cause—LGBTQ equality. The Court ruled that an employer discriminates on the basis of sex, in violation of Title VII, when the employer discriminates against an employee because of their sexual orientation or gender identity. The decision means that existing federal law forbids employers from discriminating against LGBTQ individuals.

But the reasoning in the decision suggests that victory will be limited in significant ways in the near future. For example, the opinion went out of its way to suggest that another statute, the Religious Freedom Restoration Act, might prevent Title VII from prohibiting discrimination by employers who have religious objections. Indeed, the author of the Title VII opinion, Justice Neil Gorsuch, joined an opinion in another case that concluded the Religious Freedom Restoration Act allows religious exemptions to another statute, the Affordable Care Act. In the Title VII, DACA, and Louisiana abortion cases, the outcomes appeared to be progressive while the reasoning signaled forthcoming wins for the conservative legal movement.

In the remaining major cases—the presidential-immunity cases—conservatives won the outcomes they wanted even though the Court seemed to reject the Trump administration’s legal arguments. In both Trump v. Mazars and Trump v. Vance, the Court rejected the administration’s broadest attacks on subpoenas that sought the president’s financial records. The Court ruled out the possibility that a president’s personal financial records could never be subpoenaed while the president was in office. The Court also rejected the argument that subpoenas regarding the president are valid only if Congress or state prosecutors can make some heightened showing of need for them.

But the Court also declined to hold that the subpoenas could be enforced now. As a result, Donald Trump got what he wanted—a decision that ensured his financial records would not become public before the 2020 election. In the congressional subpoena case, the Court directed the lower courts to apply a legal standard to the subpoenas that would allow the president to raise more specific arguments for how exactly the subpoenas burdened the presidency or sought too much information. And in the New York grand-jury subpoena case, the Court directed the lower courts to consider slightly reformulated, and more specific, challenges to the subpoenas that the president might want to raise. As a result, Congress and the New York grand jury will not obtain the president’s financial records in the near future, and the public will not see them anytime soon. That represents a significant win for Trump, who has sought to keep his financial records secret and certainly does not want them coming to light right before the election. By permitting the president to raise slightly different legal challenges to the subpoenas—and by directing the lower courts to be more attuned to the separation-of-powers concerns with subpoenas implicating the president—the Court guaranteed that these subpoenas will be tied up in litigation for the foreseeable future.

Liberals seemed to win several major Supreme Court cases this term, either because the results of the cases benefited liberal causes or because the Court rejected conservatives’ sweeping arguments. But even in cases where liberals appeared to win, conservatives did not exactly lose—and, indeed, seem on the brink of winning a lot in the years ahead.