When former President Donald Trump’s third nominee for the Supreme Court was confirmed in 2020, it cemented the most conservative majority on the court since the 1930s, it wasn’t clear which conservative goals the judges would tackle first. Culture war issues such as abortion, gun rights, affirmative action and religious freedom were obvious possibilities, but issues with more subtle implications such as limit executive power and boundary unions have long been on the wish list of conservative lawyers. So the question wasn’t if the court would move to the right – it was more a question of where they would start.
The term isn’t over yet, but already it looks like this year could be a bonanza for Conservatives – and not just because of the high-profile cases that have garnered the most attention. I’ve written about how the judges handled the case of Roe v. Wade, who established a constitutional right to abortion in 1973 and expanded gun rights for the first time in over a decade. But there are several other, less prominent cases that could also have far-reaching implications for Americans’ lives.
For example, it seems very likely that the judiciary will continue to erode the barrier between church and state the obligation of states to fund religious schools in programs where they already support non-religious private schools. The conservative judges could also hinder the ability of government agencies to act independently of Congress, giving the conservative-leaning federal judiciary greater power over its decisions.
“This term is a gift basket for the conservatives who wanted to elect Trump so he can appoint Supreme Court justices,” he said Leah Litman, a law professor at the University of Michigan. “It is clear that the conservative judges are interested in moving the law on a number of important issues that have enormous practical implications for the way our government works and for people’s lives.”
The separation of church and state is likely to continue to erode
In some rural parts of Maine, non-religious schools provide government funding for children’s tuition. This provision does not apply to religious schools, but that may change soon. Two families who send or want to send their children to religious private schools sued the state, and said they should be able to get tuition reimbursed at those schools too. They argued that if Maine pays for children to attend some private schools, the exclusion of religious schools is unconstitutional.
At the hearing on the case in December, the conservative judges seemed inclined to agree with the families. Attorneys for Maine and the Biden administration claimed the program was designed to provide a handful of children in remote parts of the state with something akin to a public school education without promoting a religious worldview. But some of the judges seemed unconvinced. “All [the families] demand is equal treatment, not special treatment,” said Judge Brett Kavanaugh. “They say, ‘Don’t treat me any worse because I would rather send my children to a religious school than to a secular school. Treat me the same as the secular parent next door.’”
Lee Epstein, a political scientist at Washington University in St. Louis who studies the Supreme Court, told me she thinks Maine families will have an easy time prevailing. Along with Eric Posner, law professor at the University of Chicago, she analyzed the track record of the Roberts court on religious freedom and cases of separation of church and state and found that judges sided with religious organizations in over 80 percent of cases, a staggering increase from about 50 percent in previous courts since 1953. “This court is ruling with an incredibly high proportion of religious plaintiffs,” she said. “I see this case as a continuation of that trend.”
A win for the Maine families would also continue a long winning streak for religious plaintiffs in the more specific area of school funding. Several cases in recent years have focused on religious school funding, and the court has nullified states’ ability to prevent religious schools from receiving taxpayer money. In 2017, for example, a 7-2 majority – including two of the Liberal judges, Elena Kagan and Stephen Breyer – decided that Missouri couldn’t rule out a religious school from a public grant for resurfacing playgrounds. And three years later, in 2020, a 5-4 decision effectively gutted state constitutional provisions who barred public funds from attending religious schools by ruling that Montana could not bar religious schools from its private school scholarship program. Now the Maine families and their supporters are pointing to these two cases as precedents.
The court’s approach to these cases has so far embodied the incrementalism pursued by Chief Justice John Roberts seems to prefer. The first decision was incredibly close — the judges understood it applied only to state grants for playground renewal — but it left the door open to more far-reaching cases. Each subsequent case built on the last, with ever broader implications. The Montana case opened the door for lawmakers in more states to create programs that benefit religious schools. Well, depending on how the judges decide, the Maine case could open up a new avenue for religious schools to receive public funding.
That, in turn, could lead to even more extreme cases — and a possible departure from the gradualism Roberts values, depending on how other conservatives feel. “Every time they make one of those decisions, they move the Overton window and invite conservative advocates to ask them to go further,” Litman said. And there are plenty of signs of an appetite for a sharper right turn. just last year the Republican-appointed judges stated that they were willing to reconsider a longstanding precedent that limits constitutional protections of religious conscience.
Depending on the outcome of this term’s case and where the judges go next, this series of school-related cases could involve even more contentious religious freedom disputes, such as whether publicly-funded charities or business owners serving the community discriminate on the basis may of their religious beliefs. “We could end up with a situation where states are necessary Fund programs that discriminate based on race or sexual orientation,” Litman said.
The court could begin to curtail executive powers
Some cases that make their way to the Supreme Court are easy for non-lawyers to understand, but most are not. However, that doesn’t mean they don’t have a major impact on the lives of Americans, and that’s especially true in cases involving executive power. During this term, two of those seemingly dormant disputes could significantly weaken the powers of federal agencies and give federal judges, many of whom are very conservative, enormous veto power.
Admittedly, the specifics of the cases don’t make for compelling reading. In one heard by the Supreme Court in November, Hospitals are a challenge the federal government’s system for calculating Medicare reimbursements. In the other – technically four cases bundled together and scheduled for late February – GOP-controlled states, energy companies and coal miners argue that an Obama-era plan to combat climate change will not be authorized under the Clean Air Act.
But behind these dry-sounding disputes lies a protracted battle over what the executive branch is actually allowed to do. In the case of the hospitals the judges could, for example, reconsider a jurisprudence was first established in a 1984 case involving energy company Chevron, which gives federal agencies much latitude in interpreting the laws they are tasked with enforcing. The idea behind the Chevron Doctrine is that Congress cannot foresee all the tiny problems and creases that will arise in passing legislation, and that the agencies’ experts are able to make sound decisions in situations where the law is ambiguous – and perhaps in most cases what matters is that they are in a better position to make these calls than judges. The climate change case, meanwhile, includes a dormant legal doctrine called “non-delegation”, which limits how much power Congress can delegate to federal agencies. In recent years, conservative judges – particularly Justice Neil Gorsuch – have made it clear that they want this limit or repeal the Chevron Doctrine, and Bring back the doctrine of non-delegation.
It’s hard to overestimate the stakes of these two cases at a moment when much of the country’s actual government — for better or for worse — takes place in the executive branch. Environmental issues, safety at work, health care, discrimination at work and more are dealt with by different administrative bodies. Additionally, with Congress in a constant state of deadlock, it’s hard to imagine lawmakers responding to these potential decisions by writing legislation to those agencies with more specific instructions—if that’s even possible. “There are a lot of things that Congress can’t anticipate or that might not be worth their time,” Litman said. “You really want Congress to try and figure out something like the correct amount of a particular chemical that can be in buildings?”
So the practical effect of repealing the Chevron Doctrine or reinstating the non-delegation doctrine would be to give judges more leverage over federal rules. “If you look at it skeptically, that would amount to judges giving themselves more power,” Epstein said. Given the conservative leanings of the federal judiciary, doing so would likely result in many regulations being struck down — which would be a blow to the power of the presidency in general, but would likely have the greatest impact on Democratic presidents.
None of these cases have garnered much attention so far, which might make it easier for the court to do something fairly dramatic without getting much backlash. And since the cases involving federal agencies in particular are so technical, the court may not have to fear violating public opinion anyway. But for conservative lawyers watching the courts, these cases hold a lot of meaning, which means the term could mark an even sharper legal turn than the non-lawyers among us might expect.