Surprise Supreme Court decisions suggest justices have eye on reputation

The Supreme Court’s term came to an end last week with decisions nullifying President Biden’s student debt relief plan and the affirmative action in college admission programs, outcomes that reaffirmed the high court’s conservative bent.  

The court issued several unexpected outcomes this term that suggested it may be more nuanced than meets the eye, but Supreme Court watchers say those outcomes are less indicative of a moderating court than one aware of its falling public standing. 

“It's still going to be an aggressively right-wing court, but maybe there are some boundaries that the court is going to impose on itself because it is — and I would say, the chief justice in particular, is — worried about its own reputation and standing with the public,” said Mary Cheh, a professor at George Washington University Law.

A Quinnipiac University poll last month found 30 percent of registered voters approved of the Supreme Court, while 59 percent disapproved — the high court’s lowest approval rating since Quinnipiac started asking the question in 2004.  

“I think they trimmed their sails in some cases,” said Josh Chafetz, a professor at Georgetown University Law, which he said allows the court to “at least claim that, ‘Hey, we're not just doing conservative policy here.’” 

Here are four surprise decisions the Supreme Court reached this term.  

Drawing legislative lines

The Supreme Court declined to endorse the so-called “independent state legislature” theory by rejecting a bid from GOP lawmakers that would have given state governments expansive authority in drawing congressional maps and regulating federal elections.  

The high court decided 6-3 that state courts can review federal election rules enacted by state legislatures and hear partisan gerrymandering lawsuits related to congressional redistricting.

Chief Justice John Roberts and two other conservative justices were joined by the court’s three liberal justices in the majority, which represented a victory for Democrats. 

The independent state legislature theory purports that state legislatures hold exclusive authority over federal election regulations. The North Carolina Republican lawmakers who advanced the theory pointed to a portion of the U.S. Constitution’s Elections Clause that says the “Times, Places and Manner” of federal elections are to be decided by state lawmakers.

Legal experts expressed surprise that the high court agreed to hear the case given its unorthodox nature.  

“It was always a fringe theory and probably should have been dispensed with before,” Cheh said.

Joey Fishkin, a law professor at the University of California, Los Angeles (UCLA), said the court’s choice to decide the case was likely a preventative measure as the U.S. barrels toward the 2024 elections.  

“I do think that what the court was trying to do here was close the door on John Eastman-type arguments for next time,” Fishkin said, referencing the Trump lawyer who attempted to overturn the 2020 election with the novel legal theory.  

Alabama’s congressional map

A narrow coalition of the Supreme Court’s liberal justices and two conservative justices —Roberts and Justice Brett Kavanaugh — ruled that an Alabama GOP-drawn congressional map likely violated the Voting Rights Act (VRA) by weakening Black voters’ power, handing voting rights advocates a 5-4 win.  

It was widely expected the court would use Alabama’s case to diminish the Voting Rights Act section that prohibits voting practices resulting in racial discrimination. 

Chafetz said the court’s decision in Allen v. Milligan was a twofold surprise.  

“First, because in election-law cases, these justices have generally ruled in ways that they anticipate will help Republicans, and this outcome clearly favors Democrats,” Chafetz said. “And second, because the Republicans on the Court — and especially John Roberts, who wrote the majority opinion — have been almost uniformly hostile to the Voting Rights Act up to this point.” 

“To have a case that leaves the VRA where it found it, and especially in an opinion by Roberts, is really striking,” he added.  

The right to handle immigration and deportations

The Supreme Court determined 8-1 last month that states challenging the Biden administration’s guidelines for deporting migrants from the country did not have the authority to do so. 

Texas and Louisiana challenged a Department of Homeland Security policy that directed Immigration and Customs Enforcement to prioritize certain immigrants for detention and deportation. The policy tells agents to focus on serious crimes and is meant to decrease heavy policing in immigrant communities.  

“To combat federal immigration regulation was always a stretch, and the court's rejection of it, of that argument, I think merely suggests that the court was adhering to the long-standing understanding of immigration law as something that is properly within the authority of the federal government,” said Adam Winkler, a professor at UCLA School of Law.

But the court’s decision also raised questions about the way it will approach presidential powers in the future, Cheh said. She contrasted the immigration outcome with the court’s decision to block Biden’s student loan forgiveness plan, which would have canceled up to $10,000 for most borrowers and $20,000 for Pell Grant recipients. 

“There's something going on with the court in terms of how it wants to preserve presidential authority,” Cheh said. 

Tribal custody proceedings

In Haaland v. Brackeen, the Supreme Court decided 7-2 to preserve a longstanding federal law meant to keep Native American children with their families and tribes during custody proceedings.  

Enacted in 1978, the Indian Child Welfare Act (ICWA) imposed minimum standards for separating Native children from their families and tribes and established default preferences for their adoption and foster-care placements.  

Three white couples argued before the Supreme Court that the ICWA exceeded Congress’s constitutional authority — and even if Congress had that authority, the default preferences set by the law discriminated against them.  

The high court ruled ICWA did not exceed Congress’s constitutional authority. It also determined the challengers did not have legal standing to bring their claims that the provision is unconstitutional under the 14th Amendment, which guarantees equal protection.  

“The court has been so hostile to any kind of race-based decision-making by the government that there were those who thought that the Indian Child Welfare Act was on shaky footing in this court,” Winkler said. “So, it's kind of surprising that the Court turned away that challenge.” 

Winkler added that Haaland v. Brackeen is another example of a case that Supreme Court watchers were surprised the court undertook.

“The arguments made against the Indian Child Welfare Act were unimaginable 10 or 15 years ago,” he added. “No one would have brought this case if the Supreme Court hadn't turned so hard to the right in recent years.”