The Court’s Declarations of Independence

Aimee Stephens outside the Supreme Court after oral arguments by David Cole in her case challenging the legality of discrimination against transgender employees
Michael Reynolds/EPA-EFE/Shutterstock
Aimee Stephens outside the Supreme Court after oral arguments by David Cole in her case challenging the legality of discrimination against transgender employees, Washington, D.C., October 2019. Stephens died in May.

When the Supreme Court’s 2019–2020 term opened last October, with LGBTQ discrimination, gun rights, abortion, immigration, and state funding of religious schools on the docket, it promised to be both controversial and deeply partisan. The Court then added cases on whether President Trump could block Congress and a grand jury from obtaining his personal financial records, and whether employers who objected to contraception on religious grounds could refuse to provide their employees with insurance that paid for it. This was Justice Brett Kavanaugh’s second term on the Court, and it afforded a real test of how his replacement of the more moderate Anthony Kennedy would alter the Court’s character. Republicans, who had long made picking “reliable” conservative justices a priority, were eager to reap their rewards.

But in the end, the Court’s term was much less conservative than anyone had expected. In many of its most prominent cases, one or more conservative justices joined their liberal colleagues, declaring that federal civil rights law bars LGBTQ discrimination, striking down a Louisiana restriction on abortion, and invalidating President Trump’s effort to rescind deportation protection and work authorization from “Dreamers,” the 700,000 young undocumented migrants who came to the United States as children, and whom President Obama had given protection under the Deferred Action for Childhood Arrivals (DACA) program. Seven justices joined forces to reject President Trump’s contention that he could ignore subpoenas of his financial records, with even his own appointees, Kavanaugh and Neil Gorsuch, ruling against him. And Justice Gorsuch joined the four liberal justices—Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor—to declare that about half of Oklahoma belonged to the Muscogee (Creek) Nation for purposes of authority to prosecute Native American defendants.

The conservatives won their share of decisions, to be sure. The Court restricted immigrants’ rights to judicial review of deportation orders, and required states to fund scholarships for religious schools if they funded secular schools. It excused Catholic schools from abiding by civil rights laws in hiring and firing teachers who provide religious instruction, and upheld President Trump’s order permitting employers to deny their employees contraceptive coverage. And in a series of unexplained or barely explained decisions reviewing requests for emergency stays of lower court orders, the Court four times ruled against efforts to protect voting rights, and twice cleared the way for federal executions by summarily overruling lower courts that had identified serious legal questions that still needed to be resolved.

Still, the primary question the term raised was why liberals prevailed in so many significant decisions.…


This is exclusive content for subscribers only.
Get unlimited access to The New York Review for just $1 an issue!

View Offer

Continue reading this article, and thousands more from our archive, for the low introductory rate of just $1 an issue. Choose a Print, Digital, or All Access subscription.

If you are already a subscriber, please be sure you are logged in to your nybooks.com account. You may also need to link your website account to your subscription, which you can do here.