Antonin Scalia’s death has changed the way the Supreme Court—and conservative litigants—do business.

The Supreme Court’s Conservative Era Is Over

The Supreme Court’s Conservative Era Is Over

The law, lawyers, and the court.
March 8 2016 12:34 PM

The Conservative Era Is Over

Antonin Scalia’s death has already changed the way the Supreme Court—and conservative litigants—do business.

Samuel Alito, Clarence Thomas.
Justices Samuel Alito and Clarence Thomas, the court’s two most conservative members.

Photo illustration by Lisa Larson-Walker. Photos by Chip Somodevilla/Getty Images and Susan Walsh/Getty Images.

Nobody quite knows what to make of it yet, but nobody disputes it, either: The Supreme Court of March looks nothing like the court we knew in February. The loss of a single justice, Antonin Scalia, has blown up the court and reshuffled everything. It’s the early days yet, and much of the evidence of newish, liberalish outcomes at the court lies in routine housekeeping matters: unsigned orders and withdrawn appeals. Still, it’s safe to say the high court is no longer going to be a candy store for pro-business and socially conservative litigants. What will rise in its place is still a work in progress.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

As the Washington Post’s Robert Barnes put it this past weekend, with Scalia gone, “the Supreme Court, now with only eight members, seemed transformed in substance and style.” It wasn’t just the fact that Justice Clarence Thomas, after 10 years of declining to ask a single question at oral argument, suddenly did so. It wasn’t merely the fact that arguments in a blockbuster abortion case were dominated by the court’s liberal wing, while the conservative bloc struggled to land a punch.


The crazy new vibe at the court isn’t even limited to the raft of orders that have come down in the past week. Those include a critical and unanimous order affirming the right of same-sex partners to adopt children and the tossing of a death penalty conviction in Louisiana because the state withheld significant exculpatory evidence.

There was also last Friday’s unsigned order allowing several abortion clinics in Louisiana to reopen their doors, following an emergency decision from the 5th U.S. Circuit Court of Appeals that would have shuttered all but one clinic in that state. In one sense, the order to keep the clinics open while the case progresses was not a massive surprise. Last June, the Supreme Court issued a similar last-minute stay of the 5th Circuit’s Whole Woman’s Health decision that would have closed a significant number of clinics in Texas. The high court heard arguments in the Texas challenge last week.

As ThinkProgress’ Ian Millhiser astutely noticed, in choosing to reinstate the Louisiana abortion rules, the 5th Circuit brushed aside the fact that the Supreme Court had prevented Texas’ clinics from closing last June. Faced with the snub, the court tartly reminded the 5th Circuit that keeping the Louisiana clinics open is “consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole.” In other words, says the Supreme Court to Louisiana, “We may be 4–4 now, but we are still here. Thank you.”

This week, the Wall Street Journal’s Jess Bravin also noted that a new alliance seems to have cropped up between the court’s two most conservative members, Thomas and Justice Samuel Alito. The emerging split between these two determined conservatives and their colleagues might be in reaction, writes Bravin, to Chief Justice John Roberts “apparently seeking consensus where he can on a court hobbled by potential 4-4 ideological splits.” By contrast, Thomas and Alito seem to be redoubling their efforts to form a bulwark against “the path set out by their six colleagues.” As Bravin details, just in the past week, the two conservatives joined together to dissent “from unsigned majority decisions overturning a murder conviction and denying a conservative group’s appeal seeking to force a transit agency to run its advertisements.” The two conservatives also aligned in an effort to uphold the right of states to sentence juveniles to life in prison without parole.


But changes at the court itself are only half of it. There’s also a growing sense among conservative interest groups and litigation shops that the good times and rich bounty of the old Roberts court are no longer on offer and that it may be better to cut and run than stick around and lose.

In an incredibly short time frame we have seen, for instance, a major antitrust appeal from Dow Chemical settled for $835 million last month, when the company determined that it wasn’t worth the risk to spin the wheel at a 4–4 court. Having only last month granted a completely unprecedented stay in a challenge to President Obama’s new environmental regulations—before the case had even been adjudicated in a lower court—Roberts batted away a similar request challenging a different pollution regulation without comment last week. Not here, he seemed to be cautioning Michigan and the other states that wanted to challenge the law. Not anymore.

Consider, too, that in New York this week a key gun rights group opted to drop its challenge to Gov. Andrew Cuomo’s SAFE Act—the big post–Sandy Hook gun control initiative—out of a concern that it could not prevail at the high court without Scalia on the bench. According to the New York Daily News, a National Rifle Association board member explained that the challenge had been halted en route to the court because “it’s just the wrong time.” His lawyers advised that “going forward could damage the case because the High Court at the very least would likely deliver a split 4-4 decision that would leave the law in place.”

This is a shocking turn from how the judicial landscape looked earlier this year. Going into this term, a number of important cases had been seen as likely to change the way we vote, the way we regulate abortion, and the way we fund public-sector unions. So certain were some plaintiffs of their likelihood of success that they had their appeals rocketed to the Roberts court on a fast track, catapulted by various interest groups toward the conservative majority. As Mother Jones’ Stephanie Mencimer pointed out immediately after Scalia’s death in February, several of the cases that looked like potential blockbuster wins for the right this term had arrived at the Supreme Court via the fast lane.


The public-sector unions case, Friedrichs v. California Teachers Association, which challenged the way teacher unions are funded, hurtled up to the court in double time. The lawyers for the dissenting teachers specifically asked the lower court to rule against them to speed the case’s route to the Supreme Court. This was in response to a suggestion from Alito in a 2014 decision that the precedent in the union fees case was now “questionable on several grounds.” As Mencimer also noted, two voting rights cases, Evenwel v. Abbott and Harris v. Arizona Independent Redistricting Commission, had sped along by way of unusual three-judge courts. As David Gans explained last June:

… appeals from three-judge courts go straight to the Supreme Court. In the hands of conservative activists, immediate appeal to the Supreme Court has been a potent weapon for deregulating campaign finance law and gutting the Voting Rights Act. Since John Roberts became Chief Justice nearly ten years ago, almost every Term has featured a major election law case coming by direct appeal. And more are on their way.

Like the raven once said: nevermore. Suddenly, in a scenario where the conservative justices have been reduced to four, the high-speed pipeline looks far less attractive. It’s not at all clear these fast-track appeals will continue, so long as outcomes are uncertain and given the possibility of a long-term vacancy. By the same token, the tactics deployed to hustle last year’s big Obamacare challenge to the high court will likely lose their allure now. Nobody wants to rush a case to the court with even odds. Watch for a lot of hurry up and wait from conservatives groups that used to be all hurry.

Expect a lot more weirdness and subtle signaling from the court as the term rolls on. An institution that never wished to be an election issue has become one. What might have once been routine orders have now turned into a complex game of reputation management. Whether it’s the chief justice trying to appear apolitical, the conservative justices trying to fly the flag of ideology, or the liberals making hay while the sun briefly shines, nothing at the court these days is exactly what it appears to be, and it appears it will be that way for a while.

And despite most of the justices’ eagerness to keep the court off the ballot in November, the sudden frailty of the conservative bloc and the almost giddily emboldened left reveal how high the stakes will be in the general election. These past few weeks have proved to the right that its fears about the post-Scalia court are justified and tantalized the left with promises of a golden era with Ruth Bader Ginsburg tossing thunderbolts around from on high. Even as it tries to speak softly and subtly this month, the court reveals just how much now hangs in the balance.