As Trump dominated the docket, a divided Supreme Court moved boldly to the right

The Supreme Court’s conservative supermajority boldly flexed its power this term, tossing aside a 40-year-old precedent to rein in the regulatory authority of federal agencies and expanding presidential power in a decision that upended Donald Trump’s federal Jan. 6 case and will almost certainly delay the trial until after the November election.

The momentous 2023-2024 term will probably be most remembered for it rulings involving the former president and presumptive Republican nominee, including the unanimous decision in March to keep him on the ballot.

But other cases will also result in major shifts in a number of areas. The court told the Securities and Exchange Commission it could no longer judge those accused of securities fraud, limited prosecutorial power in a case involving accused rioters who attacked the U.S. Capitol on Jan. 6, 2021, and blocked an ambitious initiative by the Environmental Protection Agency targeting interstate air pollution.

The court managed to reach consensus in some closely watched rulings, but there were fresh signs of a fractured conservative coalition that reflects a court not always breaking into predictable liberal or conservative camps. Even in cases in which nearly all the justices agreed on the outcome, many chose to write separately, including when the court rejected a challenge to federal gun restrictions for domestic abusers.

Justice Amy Coney Barrett cemented her place alongside Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh in the court’s often-decisive middle, and seemed emboldened in her fourth term to engage in spirited disagreement with conservative colleagues. The trio voted in the majority in nearly every one of the highest-profile cases.

“What this term tells you is that they are prepared to move the court to the right, but not nearly as far or as fast as the other conservatives on the court,” Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law, said of Roberts, Kavanaugh and Barrett. “Whether the same pattern will hold next term is anyone’s guess.”

There were more decisions — 11, as opposed to five last term — in which the justices voted 6-3 along ideological lines: contentious cases involving the rights of homeless individuals, voting rights in South Carolina and the elimination of a ban on bump stock devices that allow rifles to fire at a rate approaching that of an automatic weapon.

At the same time, the court pushed back on some of the most aggressive rulings from the conservative U.S. Court of Appeals for the 5th Circuit, dismissing — at least for now — efforts to challenge approval of the abortion pill, an attack on White House efforts to prevent what the federal government considers misinformation on social media platforms and an attempt to undercut the viability of a consumer watchdog agency.

Two years after overturning Roe v. Wade, the landmark decision that established a fundamental right to abortion, the high court made rulings in two cases that amounted to temporary victories for abortion rights, while leaving the door open to future efforts to restrict access. One involved emergency room abortions when a patient’s health, but not their life, is at risk. The other involved the abortion pill mifepristone, one of two drugs used in tandem in more than 60% of all U.S. abortions.

Depending on what happens in lower courts, both cases could return to the justices in future years.

“It is a deeply conservative court, notwithstanding several departures in a few high-profile cases,” said Harvard Law professor Richard Lazarus, a close watcher of the court.

Melissa Murray, a New York University law professor and co-host of a liberal podcast about the court called “Strict Scrutiny,” said the high court’s rejection of some of the 5th Circuit’s most extreme rulings allowed the justices to “maintain this patina of moderateness” even as its most conservative members sometimes agreed with the lower-court decisions.

Even when the justices rebuke the 5th Circuit, their rulings and dissents “move the court a little to the right,” Murray said. “It just feels like moderation.”

In a fraught and high-stakes election year, the court seemed at times to be reaching for consensus. In March, it unanimously rejected an effort to disqualify Trump from the Colorado primary ballot because of his conduct around the Jan. 6, 2021, attack on the Capitol. But Roberts could not get consensus in the term’s final and potentially most consequential case, giving Trump — and future presidents — broad protection from prosecution for official actions. The decision drew a sharp rebuke from the liberal justices who said the majority had created a “law-free zone around the president.”

Public confidence in the high court remains at historic lows as additional revelations emerged about potential conflicts of interest by some justices. Seven in 10 Americans think the justices make decisions based on their own ideologies, rather than serving as an independent check on the government, according to an Associated Press-NORC poll released last week.

Gornstein said the many Americans who view Trump as a threat to democracy probably read the court’s immunity decision to mean “the court cares more about Trump and his reelection prospects than it does about democracy and the rule of law.”

“When a sizable portion of the public has already lost confidence in the court, that is something the court ought to worry about,” he said.

The conservative majority was at its boldest this term in pushing back against what the six Republican nominees see as federal agency overreach and the unwarranted expansion of the administrative state, said Gregory G. Garre, a Supreme Court practitioner who served as solicitor general under President George W. Bush.

“The court’s decisions in this area are reshaping the separation of powers, and way our government works,” he said in an email.

On Friday, the court discarded the precedent known as Chevron, which for decades has required judges to defer to federal agencies in implementing laws that protect the environment, financial markets, the workplace and drug safety. A day earlier, the court agreed with a 5th Circuit decision declaring unconstitutional the in-house tribunals the Securities and Exchange Commission uses to enforce rules against fraud. That same day, the court blocked an ambitious EPA initiative targeting interstate air pollution, with Barrett leading the three liberal justices in dissent.

And on Monday, the court divided again along ideological lines in a decision that expands the time period for companies to challenge regulations. Justice Ketanji Brown Jackson, reading a dissent from the bench, called the ruling “profoundly destabilizing,” saying it “wreaks havoc on government agencies, businesses, and society at large.”

Taken together, the decisions will significantly limit the power of federal agencies to regulate major aspects of American life, while simultaneously encouraging litigation that challenges agency actions.

The elimination of Chevron, in particular, was a watershed moment for conservatives who have long targeted the legal framework as unfairly favoring government regulators. While Roberts generally favors incrementalism, he wrote the precedent-reversing majority opinion that said the framework was “unworkable” and had prevented judges from judging.

“Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do,” he wrote.

The Trump administration put a premium on judicial nominees who shared Trump’s skepticism of federal agency power. The former president has promised that if he is elected to a second term, he would make it easier to fire thousands of civil servants.

Deepak Gupta, a Supreme Court advocate who closely tracks the court’s work, said that the “deregulatory agenda has never been as successful as it has been this term. This was the high-water mark of this decades-long project.”

The takeaway, Gupta said, is that the court is “expanding its own power; this is a self-aggrandizing move by the courts to take power away from elected branches.”

His comments echoed dissents in two cases: Justice Sonia Sotomayor called the court’s decision to strike down the use of in-house tribunals a “power grab,” and Justice Elena Kagan said the decision to overrule Chevron shows that “The majority disdains restraint, and grasps for power.”

While the court continued to take fewer cases than it has through most of its history — 62 this term — the justices allowed major decisions to pile up until the very end. For the first time since 1996, with the exception of the pandemic term, the high court missed its traditional end-of-June deadline and announced its final rulings July 1.

The passage of time was particularly significant in the Trump immunity case, with the American public focused on whether Trump’s trial for allegedly interfering in the 2020 election would happen before another election takes place.

To some observers, the logjam of high-profile rulings and large number of individual opinions from the justices suggests a lack of discipline.

“There are signs of dysfunction,” Garre said, noting that conservative justices were more likely to write separate concurrences. “This makes the chief justice’s job all the more difficult.”

Decades ago, when the court was deciding more than 100 cases a term, there was no time for justices to write so many individual opinions. But with only 60 or so, “too many of the justices are swelled by their own celebrity to speak only as a court. They think the world wants to know what they think,” said Lazarus, the Harvard Law professor. “I am more impressed when they show they can collaborate with others.”

Even so, Roberts held the majority in the most important cases, underscoring his key role at the helm of a volatile bench. The chief justice was in the majority 96% of the time, followed closely by Kavanaugh and then Barrett, according to EmpiricalSCOTUS statistics compiled by Adam Feldman and Jake S. Truscott.

Any sense of dysfunction was reinforced when the court inadvertently and briefly posted a copy of an opinion involving Idaho’s abortion ban on its website a day before it was formally issued.

Early in the term, Roberts announced for the first time that the court had agreed to abide by an ethics code specific to the nine justices in response to criticism from Democratic lawmakers and ethics experts. If the code was intended to take the justices out of the political fray during an election year, it was not successful.

Instead of quieting its critics, the court was again dogged by ethical questions related to provocative flags displayed outside the homes of Justice Samuel A. Alito Jr. and new revelations of travel by Justice Clarence Thomas that was paid for by his friend and benefactor, Texas billionaire Harlan Crow.

In June, Roberts and Alito were targeted by a liberal activist and filmmaker who made secret recordings of the justices while posing as a religious conservative during a black-tie dinner at the court to celebrate the Supreme Court Historical Society.

“If the chief saw this term as a chance to remove the court from the political cauldron, he failed,” said Steve Vladeck, a Georgetown University law professor who closely tracks the work of the court. “In its decisions and behavior off the bench, the court continues to assert itself as a central part of the political discourse and not as an institution above it.”