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U.S. court conservatives dash decades of abortion, affirmative action precedents

In 370 days, a Supreme Court reshaped by 3 justices nominated by Trump made both a reality
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FILE - Members of the Supreme Court sit for a new group portrait following the addition of Associate Justice Ketanji Brown Jackson, at the Supreme Court building in Washington, Oct. 7, 2022. Bottom row, from left, Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan. Top row, from left, Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh, and Associate Justice Ketanji Brown Jackson. (AP Photo/J. Scott Applewhite, File)

Overturning Roe v. Wade and eliminating affirmative action in higher education had been leading goals of the conservative legal movement for decades.

In a span of 370 days, a reshaped by three justices nominated by President Donald Trump made both a reality.

Last June, . This past week, the court鈥檚 conservative majority decided that at the oldest private and public colleges in the country, Harvard and the University of North Carolina, were unlawful.

Precedents that had stood since the 1970s were overturned, explicitly in the case of abortion and effectively in the affirmative action context.

鈥淭hat is what is notable about this court. It鈥檚 making huge changes in highly salient areas in a very short period of time,鈥 said Tara Leigh Grove, a law professor at the University of Texas.

and , there were other consequential decisions in which the six conservatives prevailed.

They rejected the Biden administration鈥檚 and can refuse on free speech grounds to design websites for same-sex couples, despite a Colorado law that bars discrimination based on sexual orientation and other characteristics.

The court, by a 5-4 vote, also sharply limited , although all nine justices rejected the administration鈥檚 position.

Affirmative action was arguably the biggest constitutional decision of the year, and it showcased from the court鈥檚 two Black justices, Clarence Thomas and Ketanji Brown Jackson.

They offered sharply contrasting takes on affirmative action. Thomas was in the majority to end it. Jackson, in her first year on the court, was in dissent.

The past year also had a number of notable surprises.

Differing coalitions of conservative and liberal justices and that could have left state legislatures unchecked and dramatically altered elections for Congress and president.

The court also ruled for the Biden administration in a fight over and left in place the Indian Child Welfare Act, .

Those cases reflected the control that Chief Justice John Roberts asserted, or perhaps reasserted, over the court following a year in which the other five conservatives moved more quickly than he wanted in some areas, including abortion.

Roberts wrote a disproportionate share of the term鈥檚 biggest cases: conservative outcomes on affirmative action and the student loan plan, and liberal victories in Alabama and North Carolina.

The Alabama case may have been the most surprising because Roberts had consistently sought to narrow the landmark Voting Rights Act since his days as a young lawyer in the Reagan administration. As chief justice, .

But in the Alabama case and elsewhere, Roberts was part of majorities that rejected the most aggressive legal arguments put forth by Republican elected officials and conservative legal advocates.

The mixed bag of decisions almost seemed designed to counter arguments about the court鈥檚 legitimacy, raised by Democratic and liberal critics 鈥 and some justices 鈥 in response to last year鈥檚 abortion ruling, among others. The narrative was amplified by published reports of undisclosed, paid jet travel and fancy trips for Justices and from billionaire Republican donors.

鈥淚 don鈥檛 think the court consciously takes opinion into account,鈥 Grove said. 鈥淏ut I think if there鈥檚 anyone who might consciously think about these issues, it鈥檚 the institutionalist, the chief justice. He鈥檚 been extremely concerned about the attacks on the Supreme Court.鈥

On the term鈥檚 final day, Roberts urged the public to not mistake disagreement among the justices for disparagement of the court. 鈥淎ny such misperception would be harmful to this institution and our country,鈥 he wrote in the student loans case in response to a stinging dissent by Justice Elena Kagan.

Roberts has resisted instituting a code of ethics for the court and has questioned whether Congress has the authority to impose one. Still, he has said, without providing specifics, that the justices would do more to show they adhere to high ethical standards.

Some conservative law professors rejected the idea that the court bowed to outside pressures, consciously or otherwise.

鈥淭here were a lot of external atmospherics that really could have affected court business, but didn鈥檛,鈥 said Jennifer Mascott, a George Mason University law professor.

Curt Levey, president of the Committee for Justice, pointed to roughly equal numbers of major decisions that could be characterized as politically liberal or conservative.

Levey said conservatives 鈥渨ere not disappointed by this term.鈥 Democrats and their allies 鈥渨arned the nation about an ideologically extreme Supreme Court but wound up cheering as many major decisions as they decried,鈥 Levey wrote in an email.

But some liberal critics were not mollified.

Brian Fallon, director of the court reform group Demand Justice, called the past year 鈥渁nother disastrous Supreme Court term鈥 and mocked experts who 鈥渟quint to find so-called silver linings in the Court鈥檚 decisions to suggest all is not lost, or they will emphasize one or two so-called moderate decisions from the term to suggest the Court is not as extreme as we think and can still be persuaded from time to time.鈥

Biden himself said on MSNBC on Thursday that the current court has 鈥渄one more to unravel basic rights and basic decisions than any court in recent history.鈥 He cited as examples the overturning of abortion protections and other decisions that had been precedent for decades.

Still, Biden said, he thought some on the high court 鈥渁re beginning to realize their legitimacy is being questioned in ways it hasn鈥檛 been questioned in the past.鈥

The justices are now embarking on a long summer break. They return to the bench on the first Monday in October for a term that so far appears to lack the blockbuster cases that made the past two terms so momentous.

The court will examine the legal fallout from last year鈥檚 major expansion of gun rights, in a case over a domestic violence gun ban that was struck down by a lower court.

A new legal battle over abortion also could make its way to the court in coming months. In April, the court , while a lawsuit over it makes its way through federal court.

The conservative majority also will have opportunities to further constrain federal regulatory agencies, including a case that asks them to overturn the so-called Chevron decision that defers to regulators when they seek to give effect to big-picture, sometimes vague, laws written by Congress. The 1984 decision has been cited by judges more than 15,000 times.

Just seven years ago, months before Trump鈥檚 surprising presidential victory, then-Justice Ruth Bader Ginsburg reflected on the term that had just ended and made two predictions. One was way off base and the other was strikingly accurate.

In July 2016, the court had just ended a term in which the justices upheld a University of Texas affirmative action plan and struck down state restrictions on abortion clinics.

Her first prediction was that those issues would not soon return to the high court. Her second was that if Trump became president, 鈥渆verything is up for grabs.鈥

Ginsburg鈥檚 death in 2020 allowed Trump to put Justice Amy Coney Barrett on the court and cement conservative control.

Commenting on the student loan decision, liberal legal scholar Melissa Murray wrote on Twitter that Biden鈥檚 plan 鈥渨as absolutely undone by the Court that his predecessor built.鈥

Mark Sherman, The Associated Press

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