Analyzing the consequential Supreme Court term and its ideological divide

The Supreme Court wrapped up oral arguments and has now turned to rolling out decisions in some of the most consequential cases of the year. Those decisions will shape policies nationwide on divisive issues like homelessness and reproductive rights, and some of them could affect the presidential election. John Yang discussed more with NewsHour Supreme Court analyst Marcia Coyle and Joan Biskupic.
Amna Nawaz:
The Supreme Court wrapped up oral arguments last week and has now turned to rolling out decisions.
As John Yang explains, they could be some of the most consequential cases of the year — John.
John Yang:
Amna, some of those decisions will shape policies nationwide on such divisive issues like homelessness and reproductive rights, and some of them could even affect the presidential election.
The passions surrounding these issues were reflected in protests outside the court on oral argument days. Now, inside the court, the justices are spending the next two months or so searching for agreement among at least five of them in the 43 cases that remain undecided.
Watching all of this are two Supreme Court analysts, the “NewsHour”‘s Marcia Coyle and Joan Biskupic of CNN, author of “Nine Black Robes.”
Joan, Marcia, thanks for being here.
Marcia, 61 oral arguments this session. Was there any common theme or thread running through them?
Marcia Coyle:
Well, John, I think there were a number of themes, but I’d step back for a moment and take a look at the court a little bit and say that this appears, especially this term, to be a very confident court willing to step into some of the most divisive issues, maybe even eager by some of them to take on these questions.
And we see it in the arguments that we listened to, everything from EPA’s good neighbor plan for the Clean Air Act, to abortion, to, of course, what may very well define the term, Trump’s litigation.
John Yang:
Talk about those. There were — there were, what, four cases involving the former president?
Joan Biskupic, Supreme Court Analyst:
Four total, and three that most people will know about.
Donald Trump has loomed over the Supreme Court from the start. When he was president, he was constantly saying, just wait until my cases get to the Supreme Court. And, of course, he named three of these nine justices, and he’s felt like he had a little bit of ownership there.
And we have already seen one of the Trump cases come down. The justices ruled unanimously that an anti-insurrectionist provision of the 14th Amendment could not be used to keep him off the ballot. That was the Colorado case. But now we just had two more recent ones that could be very consequential for him.
Most strikingly will be the test of whether he can be immune from criminal prosecution in the four charges brought by special counsel Jack Smith.
John Yang:
And, also, Donald Trump did a lot to shape the Supreme Court. This is that fourth year you have the supermajority of six conservative justices.
Is there any sense — as the oral arguments went on this year, does there any sense that they’re still sort of evolving, coalescing, trying to figure out how to dance together?
Joan Biskupic:
Definitely. You have got the three liberals and the six conservatives, but they’re not all created equal on both sides.
For example, on the conservative side with the six, you have a great difference in terms of personality and also kind of urgency on the part of Sam Alito, who’s 74, and really wants the court to be moving pretty fast to the right. But then you have Amy Coney Barrett, who’s only 52.
She was the third appointee of Donald Trump, who takes a little bit more pragmatic, slower approach. They’re both conservatives, but they’re signaling in a different way about how far they want to go.
Same on the left side. You have got someone who’s very strategic in Justice Elena Kagan, one of President Obama appointees, and our newest justice, Ketanji Brown Jackson, the only appointee of President Joe Biden at this point, who’s more independent and consistently liberal, as opposed to Justice Kagan, who, as I say, is a little bit more transactional.
John Yang:
Marcia, I want to talk a little bit more about Justice Barrett…
Marcia Coyle:
Yes.
John Yang:
… because as eager to go as Samuel Alito is, she…
Marcia Coyle:
Yes.
John Yang:
This term, there were a number of times, she said, well, let’s wait. Let’s not move so fast. Let’s just decide what’s in front of us.
Marcia Coyle:
Yes, I think this term in particular.
I mean, she did indicate in some earlier cases, for example, a case involving a Catholic foster child agency, not willing to immediately overturn a religion precedent that some of the — her more conservative colleagues and the religious right would love to see, but she would not do that.
She also was very cautious in an Indian child welfare challenge not to go down the road of race. And then, this term, as Joan has pointed out, her questions, for example, in the Trump immunity case, she was more focused on acts that could actually be tried and not on a rule for the ages, as Justice Gorsuch wanted.
And there have been other cases where she has shown more caution. But I’d caution everybody too that it’s very early and we have to see how she writes, not only how she votes,but what she writes. And it gets very difficult labeling some of these conservatives as maybe a moderate. She’s being called now a moderate conservative like John Roberts.
And yet you have to remember that she was shortly put on the bench in the Supreme Court, when she overturned Roe v. Wade.
John Yang:
This term, Marcia, there have been 18 decisions that have been handed down. All but three of them were unanimous and the other three were lopsided.
Are they getting the easy ones out, the things they can agree on out now and fight about the rest?
Marcia Coyle:
Yes, John, of course.
(Laughter)
Marcia Coyle:
And that has sort of been their pattern for many, many terms. And it’s a very human kind of pattern. Get out what you can quickly so that you have more time to focus on the really complicated ones, although, over the course of the Roberts court, there has been generally a good degree of unanimity.
You say 61 cases, but there’s really only a handful of cases that we tend to focus on that are going to end up being very divisive.
John Yang:
Joan, this is the — almost the 20th year of John Roberts, the Roberts court.
Joan Biskupic:
Yes.
John Yang:
Describe the Roberts court as it is now.
Joan Biskupic:
Oh, I think it’s still very divided. It’s the cases that we care about most that come down to 6-3 or 5-4.
And they’re the ones that John Roberts is constantly trying to bring greater, if not unanimity, a bit of a more lopsided ruling. And let’s just take, for example, on the Trump immunity case. You know, he has struggled in the past on Trump cases.
For example, in 2020, when he handled the documents cases, worked very hard behind the scenes to take 5-4 initial votes and make him 7-2. And I could see him doing that here with the Trump immunity one, because, as much as he himself is very conservative — remember, John, he cut his teeth in the Reagan administration. He’s been pretty consistently conservative.
He’s also aware of the standing in the public eye of this court and how much its stature has been diminished in recent years. So I think what he’s going to want to show in some of these more divisive cases, on Trump claims, on some regulatory matters, and maybe even on some of the abortion ones that they have heard, is to try to bring both sides to a — more of a compromise.
You’re always going to have someone like Justice Clarence Thomas, probably Samuel Alito, Marcia…
Marcia Coyle:
Yes.
Joan Biskupic:
…. over further to his right. But I think he’s going to try to win greater compromise, because that’s the stamp he’s trying to put on this court.
Marcia Coyle:
I think, John, we have to remember, too, that this is still, on Supreme Court time, a relatively young court.
Joan Biskupic:
Yes.
Marcia Coyle:
And I remember one justice telling me that, when you get a new justice on the bench, it’s a lot like a marriage and a new marriage, or it’s like getting a new family member. You have to get used to how that person wants to operate.
And that takes time. Is it going to be someone like retired Justice Breyer, who liked to sit down in other chambers and chat about cases? Or is it somebody who just wants to use drafts?
John Yang:
Joan Biskupic, Marcia Coyle, thank you both very much.
Joan Biskupic:
Sure.
Marcia Coyle:
Pleasure, John.
Joan Biskupic:
Thanks, John.