The US Supreme Court offered new evidence on Tuesday that conservatives have exerted control and liberals are not going quietly, in a pair of 5-4 decisions that could explain the remarkably slow pace of decisions this session.
Earlier signs of a rightward shift were reinforced particularly as the majority shielded foreign corporations from certain lawsuits over human rights abuses. The opinions in that case – subjected to oral arguments back in October – played out over 85 fractious pages.
The latest actions give contours to the first full term of President Donald Trump’s appointee, Neil Gorsuch, and come on the eve of oral arguments in what is arguably the most important case of the annual nine-month session.
The justices Wednesday will hear a challenge to Trump’s travel ban on immigrants from select majority-Muslim countries. The dispute over this signature Trump initiative, a foundation of his 2016 campaign, could be the greatest test of the reconstituted Roberts Court’s ideological divisions.
It is difficult to know the exact source of the delays – the justices meet in private and require confidentiality among law clerks. But sufficient signs have emerged that the dueling ideological camps are engaged in especially protracted rounds of back-and-forth, attacking each other’s legal rationales.
The conservative wing has prevailed in most of the narrowly decided cases but individual conservatives have not always been united in their rationale. This is a long-standing pattern but one that has been accelerated by Gorsuch’s distinct approach, tied to an 18th-century understanding of the Constitution.
Since the term began last October, the justices have handed down 23 signed opinions. That is a historic low for this point in the term dating back more than a century, according to Adam Feldman, whose Empirical SCOTUS blog examines trends at the Supreme Court of the United States. He said the court is experiencing record-long turnaround times for cases, from when argued to when the decision is announced, of an average 114 days.
Feldman said the court under Chief Justice John Roberts, who took the bench in 2005, has, on average, issued 36 signed decisions through April.
In Tuesday’s Jesner v. Arab Bank, Justice Anthony Kennedy announced the judgment of the court and was joined by Roberts and fellow conservatives only to an extent in the 29-page opinion declaring that victims of human rights abuses cannot sue foreign corporations in US courts for financing in the abuse. Justices Clarence Thomas, Samuel Alito and Gorsuch wrote separate concurring opinions.
Dissenting were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. That liberal foursome joined a 34-page opinion by Sotomayor.
She concluded their dissent by likening the new case to Citizens United v. Federal Election Commission, the 2010 ruling that lifted regulations on corporations in political campaigns and that stands as one of the most controversial rulings of the Roberts Court. She said such decisions let corporations “enjoy fundamental rights without having to shoulder attendant fundamental responsibilities.”
In his concurrence, Alito denounced liberals’ approach in the case that turned on the 18th-century Alien Tort Statute. “The dissent invokes ‘the considered judgment of the Executive Branch and Congress’ that ATS suits against foreign corporations are ‘necessary to help the United States avoid diplomatic friction,’” Alito asserted. “Tellingly, however, the dissent cannot muster a single source that actually supports that bold contention. “
The footnotes have become a regular battleground of rhetorical swipes. In an earlier 5-4 April case that liberals lost, Ginsburg leveled one of her harshest critiques in small type at the end of her opinion. In the dispute over Fair Labor Standards Act overtime protections, she said the conservative majority had undercut worker protections from the 1930s New Deal era “without even acknowledging that it unsettles more than half a century of our precedent.”
On Tuesday, in a separate 5-4 patent ruling in which Ginsburg was again in dissent, this senior justice on the left assigned the main dissenting opinion to Breyer. But she wrote a one-paragraph statement criticizing Gorsuch’s majority opinion and its “wooden reading” of the law at issue.
She then suggested an alternative, which Gorsuch spurned in a footnote that concluded, “lawful ends do not justify unlawful means.”