6 to 3: The Impact of the Supreme Court’s Conservative Super-Majority

As a new term of the Supreme Court begins, it is good to look back at what has gone before and at what that might tell us about the Court and what we might expect to come.

There is a six-justice majority of Republican appointees on the current court. They are decidedly more politically conservative than the three remaining justices – the Democratic appointees, who are just as decidedly more politically liberal. On the crucial, controversial, ideologically charged “hot-button” issues, the six Republican appointees – Chief Justice John Roberts and Justices Neil Gorsuch, Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett [hereafter, The Six] – and the three Democratic appointees – Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson (who replaced Justice Stephen Breyer in June 2022) [hereafter, The Three] – usually vote on opposite sides. These issues include the rights of the accused, the death penalty, abortion, racial equality, LGBTQ rights, church and state, gun rights, environmental protection and immigration.

It has now been three terms since Justice Barrett was appointed to fill the vacancy created by the passing of Justice Ruth Bader Ginsburg: the October 2020, 2021 and 2022 terms. The six-to-three majority has emphatically borne politically conservative fruit in many areas of the law. A survey of some of the most consequential will leave no doubt.

The Death Penalty

The court – more specifically, The Six – has shown little patience for the claims of death inmates. Indeed, they seem exasperated with the appeals, collateral challenges and emergency petitions that regularly delay the implementation of death sentences.

Dunn v. Reeves[1] is illustrative. The defendant, convicted of murder and sentenced to death, sought post-conviction relief on the ground of ineffective counsel. The Alabama Court of Criminal Appeals denied relief. However, the U.S. Court of Appeals for the 11th Circuit found that the state court’s application of the federal constitutional standard was “unreasonable” and granted habeas corpus. The Supreme Court, in a per curiam decision joined by The Six, granted certiorari and summarily reversed.

Applying the restrictions on federal courts imposed in the Anti-Terrorism and Effective Death Penalty Act of 1996 [hereafter, AEDPA], The Six held that the 11th Circuit had been insufficiently deferential to the findings of the state court. Repeating the Court’s prior interpretation of AEDPA, that “federal courts can correct only ‘extreme malfunctions in the state criminal justice syste[m],”[2] the six-justice majority insisted that the circuit court should not have disturbed the Alabama court’s denial of post-conviction relief.

The Three dissented. In her opinion, Justice Sotomayor decried the “troubling trend in which this Court strains to reverse summarily any grants of relief to those facing execution.” Citing numerous recent examples, Sotomayor argued that the current conservative majority had turned “deference [to state courts] into a rule that federal habeas relief is never available to those facing execution.”[3]

Among other death penalty cases, The Six again applied the “extreme malfunction” test to reverse a circuit court’s grant of habeas corpus in Shin v. Ramirez.[4] In that case, the death inmate’s post-conviction attorney failed to raise an ineffective assistance claim in the Arizona courts. But both the federal district and circuit courts excused the procedural default, ruled on the merits and granted habeas relief.

Speaking through Justice Thomas’s opinion, The Six reversed the grant of habeas corpus on the ground that, under the Court’s previous applications of AEDPA, the “state postconviction counsel’s ineffective assistance in developing the state-court record is attributed to the prisoner.”[5] The Three, in a dissenting opinion authored by Justice Sotomayor, protested that “implausible” holding. “Make no mistake,” the dissenters complained. “Neither AEDPA nor this Court’s precedents require this result.”[6]

Constitutional Causes of Action

The six-to-three majority has narrowed the rights of victims of constitutional violations to bring claims against their government offenders. The constitutionally based Miranda protections were among those diluted as a result.

In Vega v. Tekoh,[7] the acquitted defendant brought a lawsuit for the undisputed violations of his Miranda rights by a local California law enforcement official. The case raised the question of whether 42 U.S.C. Section 1983, which provides a cause of action against state officials who deprive a person of their “rights, privileges, or immunities secured by the Constitution and laws,” covers Miranda violations.

The Ninth Circuit held that it does. That court agreed with the defendant that the use of his un-Mirandized statement against him in a criminal prosecution was a violation of the Fifth Amendment right against compulsory self-incrimination. The Six, however, disagreed.

In an opinion by Justice Alito, they held that the mere failure to give Miranda warnings to a suspect being interrogated – absent any actual compulsion – is not a violation of the Fifth Amendment right. Miranda is a court-created protection of that right, not the right itself.[8]

In dissent, The Three, speaking through Justice Kagan, insisted that Miranda’s protections are indeed a right “secured by the Constitution” and, therefore, that violations should be actionable under Section 1983. The dissenters relied on the court’s 2000 landmark in Dickerson v. United States,[9] where the court – speaking through previous Miranda critic Chief Justice William Rehnquist – held that Miranda could not be overruled by a congressional statute. Why? Because, as Rehnquist had explained “in no uncertain terms,” Miranda is a “Constitutional rule” – a proposition with which The Six did not disagree.[10]

But the sides did disagree on whether the protections afforded by that “constitutional rule” – which extend beyond the “compulsion” core of the Fifth Amendment right – were to be viewed as constitutional rights themselves. The Six ruled that they were something less than that – they were merely “prophylactic” and, accordingly, not enforceable through Section 1983.[11]

In an analogous case, Egbert v. Boule,[12] The Six restricted so-called Bivens causes of action. In Bivens v. Six Unknown Fed. Narcotics Agents,[13] the Supreme Court had recognized a cause of action against federal officials for Fourth Amendment violations. The Court subsequently extended Bivens to Fifth Amendment due process and Eighth Amendment cruel and unusual violations.[14]

In Egbert, The Six declined to “extend” Bivens to a Fourth Amendment excessive force claim against border agents. In their view, Bivens causes of action were a “disfavored judicial activity.”[15] As such, they held, in an opinion by Justice Thomas, that it was up to Congress, not the court, to determine whether a cause of action was necessary to redress any such violation.[16]

The Three, in a dissent authored by Justice Sotomayor,[17] were unsurprisingly dismayed. Although the majority did not overrule Bivens outright, it had nevertheless stripped it pretty bare. According to the dissenters, the majority disregarded the Court’s repeated recognition of the importance of Bivens, “particularly in the Fourth Amendment search-and-seizure context and closes the door to Bivens suits by many who will suffer serious constitutional violations at the hands of federal agents.”[18]

Women/Minority/LGBT Rights

It is unlikely that anyone reading this article is unfamiliar with the Dobbs decision.[19] For the purpose here, it is enough to note that The Six upheld Mississippi’s law prohibiting abortion after 15 weeks’ gestation.[20] With the exception of Chief Justice Roberts, who would have gone no further,[21] they did so by overruling Roe v. Wade and rejecting any constitutional right of a woman to choose to terminate a pregnancy.[22] Justices Breyer, Sotomayor and Kagan joined in an impassioned, bitter dissenting opinion.[23]

In yet another blockbuster of this six-to-three era to date, The Six ruled that affirmative action in college and university admissions violates constitutional equal protection.[24] In his majority opinion in Students for Fair Admissions, Chief Justice Roberts asserted what he has before, that “[e]liminating racial discrimination means eliminating all of it.”[25] As applied to affirmative action, he explained that the use of racial preferences cannot be reconciled with the guarantee of equal protection because, among other things, it “unavoidably employ[s] race in a negative manner [and] involve[s] racial stereotyping.”[26]

In angry dissents, Justices Sotomayor and Jackson,[27] each writing for The Three, denounced what they viewed as the majority’s disregard of entrenched racial inequality in society and college admissions. As Sotomayor put it, the majority had “cement[ed] a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”[28]

The Six also decided that civil rights laws, at least to the extent that they prohibit sexual orientation discrimination, must sometimes give way to religious objections. In 303 Creative LLC v. Elenis,[29] in an opinion by Justice Gorsuch, the six-to-three majority ruled that the owner of a wedding website business could not be required to create a website celebrating the marriage of a same-sex couple. Because such a website would be contrary to her religious beliefs, the effect of enforcing Colorado’s anti-discrimination public accommodations law against her would be coercing the expression of ideas with which she disagreed. According to The Six, the Court’s precedents make clear that such coercion would “represent an impermissible abridgment of the First Amendment’s right to speak freely.”[30]

The Three, speaking through Justice Sotomayor’s dissenting opinion, argued that the state’s civil rights law regulates conduct, not speech, and that an “act of discrimination has never constituted protected expression under the First Amendment.”[31] Indeed, as Sotomayor noted about what The Six had done, “for the first time [the Court’s] history, it grant[ed] a business open to the public a constitutional right to refuse to serve members of a protected class.”[32]

Church and State

In a series of religious liberty decisions, a majority of the current court has rejected efforts to keep church and state separate and, instead, has invalidated such efforts for their disparate treatment of religion.[33] In Carson v. Makin,[34] for example, Chief Justice Roberts’s majority opinion, speaking for The Six, viewed Maine’s restriction on its tuition assistance program to “nonsectarian” schools as an impermissible discrimination against religion. The state’s interest in keeping church and state separate, according to the six-to-three majority, “does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”[35]

As Justice Breyer stressed in his dissenting opinion for The Three, the court had never previously held that “a State must (not may) use state funds to pay for religious education as part of a tuition program.”[36] As he stated otherwise, “[n]othing in our Free Exercise Clause cases compels Maine to give tuition aid to private schools that will use the funds to provide a religious education.”[37] Even more pointedly, Justice Sotomayor, in a dissenting opinion of her own, accused the majority of “continu[ing] to dismantle the wall of separation between church and state.”[38]

The very next week, in Kennedy v. Bremerton School District,[39] The Six sided with a high school football coach who had continued to engage in prayer with students, both during and after games, disregarding the school district’s insistence that he stop. Justice Gorsuch, writing for the majority, characterized the case as government “punishing an individual for engaging in a brief, quiet, personal religious observance [that is] doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment.”[40] He also characterized the school district’s position as “a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech.”[41]

Justice Sotomayor, writing in dissent for The Three, again chastised the majority for giving “short shrift” to the non-establishment principle of the First Amendment in the name of free exercise.[42] She noted that the court “consistently has recognized that school officials leading prayer is constitutionally impermissible,” but that the current majority was “chart[ing] a new course.”[43]

Guns, the Environment, Immigration, Financial Relief

The conservative super-majority flexed its muscle to render consequential rulings in so many other areas of the law – far too many to review here. But a few cannot go unmentioned even in a brief assessment of the court’s six-to-three impact.

In New York State Rifle & Pistol Association Inc. v. Bruen,[44] The Six did away with the state’s more than century-old law which required a “proper cause” to carry a handgun outside the home. They struck the state’s requirement as a violation of an individual’s Second Amendment right of firearm self-defense. One week later, in West Virginia v. EPA,[45] that six-justice majority rejected the Environmental Protection Agency’s authority to address climate change. They ruled that the agency could not promulgate a “generation shifting” regulation of greenhouse gas emissions without more specific congressional delegation of authority to do so.

In Johnson v. Guzman Chavez,[46] the same six-to-three court held that noncitizens, already subject to “administratively final” removal orders, are not entitled to a hearing to consider their reasonable fears of persecution or torture if they are returned. Several days thereafter, in Chrysafis v. Marks,[47] The Six sided with landlords claiming due process violations of their property rights. Over the protests of The Three, the majority summarily enjoined the enforcement of New York’s moratorium on residential evictions, which was intended to protect tenants facing financial hardship during the COVID pandemic. And at the very end of last term, in Biden v. Nebraska,[48] the six-to-three majority rejected the Biden administration’s program to cancel $430 billion in student loan debt. They held that the authority delegated under the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act), to “waive or modify” provisions of student financial assistance, did not extend to creating such a “novel and fundamentally different” program.

Conclusion

When President Donald Trump appointed three conservatives to the Supreme Court – Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – they joined the three sitting Republican appointees – Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Together, those six have wielded a far-reaching influence on “the law of the land,” moving the court and its decisions in an unmistakably politically conservative direction.

Whether this reality is good or bad, wise or foolish, to be applauded or decried, it cannot be dismissed or denied upon insistence that the justices are simply applying the law. Nor that the justices are voting – and the court deciding – in a detached, dispassionate, and entirely neutral manner.

To borrow from Benjamin Cardozo, the wisdom and candor of whose “The Nature of the Judicial Process” has never been surpassed:

Judges cannot escape . . . any more than other mortals . . . forces which they do not recognize and cannot name [that] have been tugging at them – inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs. . . . [They] may try to see things as objectively as [they] please. None the less, [they] can never see them with any eyes except [their] own.[49]

So without characterizing the “instincts,” “beliefs” and “convictions” of the six-justice conservative majority as evil or laudable – or simply mistaken or wise – let us be clear about what in fact they have decided.

Make no mistake – and I’m not aware of anyone who really does – this nation’s law is profoundly different than it otherwise would be because there is a six-to-three conservative super-majority on the court. The decisions reviewed are just a sample to illustrate that impact.

To be sure, there have been decisions during this six-to-three era – i.e., since Justice Amy Coney Barrett replaced Ruth Bader Ginsburg in October of 2020 – in which the six-to-three division did not hold. Yes, sometimes, The Three were joined by two or more of The Six to form a majority for a politically liberal ruling (see the sidebar for a few major examples). But that in no way undermines the reality that the ideological direction of the court, compliments of the six-justice politically conservative super-majority, has been indisputably and markedly politically conservative (see graph 1). Nor is the reality that, in most of the significant, ideologically charged cases, the three more politically liberal justices have been relegated to the role of frustrated protesters (see graph 2).

As the October 2023 term of the Supreme Court begins, it is reasonable to expect that the six-to-three politically conservative majority will continue to transform the nation’s fundamental law in a more politically conservative direction.

Politically Liberal Decisions of the 6-3 Court

Salinas v. United States Railroad Retirement Board, 141 S. Ct. 691 (2021): A worker aggrieved by the Board’s refusal to reopen its prior denial of disability benefits may seek judicial review.

(5-4, The Three were joined by Chief Justice Roberts and Justice Kavanaugh.)

Biden v. Missouri, 142 S. Ct. 647 (2022): The Biden administration’s Department of Health and Human Services has authority to mandate COVID-19 vaccination for workers at Medicare – and Medicaid-funded facilities.

(5-4, The Three were joined by Chief Justice Roberts and Justice Kavanaugh.)

Allen v. Milligan, 143 S. Ct. 1487 (2023): Alabama’s redistricting plan for its congressional representatives likely violates the anti-racial gerrymandering provisions of Section 2 of the Voting Rights Act.

(5-4, The Three were joined by Chief Justice Roberts and Justice Kavanaugh.)

Moore v. Harper, 143 S. Ct. 2065 (2023): The Constitution’s Election Clause (Art. I, Section 4, cl. 1) does not support the so-called “Independent Legislature Doctrine”; state courts may impose state constitutional restrictions on a state’s congressional redistricting.

(6-3, The Three were joined by Chief Justice Roberts and Justices Kavanaugh and Barrett.)

Vincent M. Bonventre is the Justice Robert H. Jackson Distinguished Professor of Law at Albany Law School and director for the Center for Judicial Process. He is the author of New York Court Watcher.

[2] Id. at 2411, citing Harrington v. Richter, 562 U.S. 86, 102 (2011).

[3] Id. at 2420–21 (Sotomayor, J., dissenting) (citing United States v. Higgs, 592 U.S. ___ (2021) (emergency vacatur of stay and reversal); Shinn v. Kayer, 592 U.S. ___ (2020) (per curiam) (summary vacatur); Dunn v. Ray, 586 U.S. ___ (2019) (emergency vacatur of stay); Johnson v. Precythe, 593 U.S. ___ (2021) (denying certiorari); Whatley v. Warden, 593 U.S. ___ (2021) (same); Bernard v. United States, 592 U.S. ___ (2020) (same)).

[4] 142 S. Ct. 1718 (2022).

[5] Id. at 1734.

[6] Id. at 1740.

[7] 142 S. Ct. 2095 (2022).

[8] Id. at 2101–02. Noting that “the Court has repeatedly described [the Miranda warnings] as ‘prophylactic’” and not the Fifth Amendment right itself, Alito cited a long list of decisions in which the court repeated that proposition. Id. at 2102.

[9] 530 U.S. 428 (2000).

[10] 142 S. Ct. at 2108–09 (Kagan, J., dissenting).

[11] 142 S. Ct. at 2101.

[12] 142 S. Ct. 1793 (2022).

[13] 403 U.S. 388 (1971).

[14] See Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment due process); Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment, cruel and unusual punishment).

[15] 142 S. Ct. at 1803 [citations omitted].

[16] Id. at 1806–07 (also noting that an administrative Border Patrol grievance process already existed). Justice Gorsuch, in a separate concurring opinion, called for the court to overrule Bivens entirely. Id. at 1809 (Gorsuch, J., concurring).

[17] Id. at 1810 (Sotomayor, J., concurring in part, dissenting in part).

[18] Id. at 1823–24.

[19] Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022).

[20] Id. at 2284 (“legitimate interests justify Mississippi’s Gestational Age Act”).

[21] Id. at 2310 (Roberts, C.J., concurring).

[22] Id. at 2284.

[23] Id. at 2317 (Beyer, Sotomayor, Kagan, JJ., dissenting).

[24] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 143 S. Ct. 2141 (2023).

[25] Id. at 2161.

[26] Id. at 2175.

[27] Id. at 2225 (Sotomayor, J., dissenting) and 2263 (Jackson, J., dissenting).

[28] Id. at 2226 (Sotomayor, J., dissenting).

[29] 143 S. Ct. 2298 (2023).

[30] Id. at 2313 (citing, among other prior decisions, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), where the court invalidated a compulsory flag salute law that required schoolchildren to recite the Pledge of Allegiance even if that that contravened their religious convictions).

[31] Id. at 2322 (Sotomayor, J., dissenting) [emphasis in the original].

[32] Id. (Sotomayor, J., dissenting). Sotomayor reminded the majority of what the court had recently emphasized when it confronted a similar issue in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018), that religious objections to same-sex marriage “do not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Id.

[33] See e.g., Carson v. Makin, 142 S. Ct. 1987 (2022) (Maine’s tuition assistance program may not be restricted to non-religious schools); Kennedy v. Bremerton School District, 142 S. Ct. 2407 (2022) (school district may not prohibit football coach from praying midfield and inviting players to join him); Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020) (Montana may not apply its state constitutional prohibition of any aid to religion to exclude religious schools from the state’s scholarship program); Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017) (Missouri may not apply its state constitutional prohibition of any aid to religion to exclude a church from the state’s program to financially assist the resurfacing of children’s playgrounds).

[34] 142 S. Ct. 1987 (2022).

[35] Id. at 1998.

[36] Id. at 2006 (Breyer, J., dissenting).

[37] Id. at 2009–10.

[38] Id. at 2009 (Sotomayor, J., dissenting).

[39] 142 S. Ct. 2407 (2022).

[40] Id. at 2433.

[41] Id. Justice Gorsuch also asserted that the court had abandoned the three prong non-establishment test formulated by then-Chief Justice Warren Burger in his landmark majority opinion in Lemon v. Kutzman, 403 U.S. 602, 612–13 (1971) (government actions that have a religious purpose, a primary religious effect or foster an excessive entanglement with religion violate constitutional non-establishment). Id. at 2427.

[42] Id. at 2434 (Sotomayor, J., dissenting).

[43] Id.

[44] 142 S. Ct. 2111 (2022).

[45] 142 S. Ct. 2587 (2022).

[46] 141 S. Ct. 2271 (2021).

[47] 141 S. Ct. 2482 (2021).

[48] 143 S. Ct. 2355 (2023).

[49] Benjamin N. Cardozo, The Nature of the Judicial Process 12–13 (1921).