Aziz Huq Writes About the Supreme Court’s Latest Term

No, the Roberts Court Is Not Moderating

The Supreme Court’s changed gears this year. Last year it went gang-busters on abortion, gun rights, religion, and more. It cast decades of established precedent to the wind, stripping many of what had seemed inalienable rights, and exposing many others to new harms. The Court Term that closed this June again wrapped up with important decisions—this time on affirmative action, student debt relief, and religious compliance with the civil rights law. None, however, depended on sudden, large jumps in the law. A more cautious, more legalistic tribunal seemed at work. The Justices seemed in first gear, not turbo mode.

This difference, however, matters perhaps less than first appearances suggest. The basic vector of the Roberts Court remains unchanged. And the basic problem of the Court flexing enormous discretion interpreting statutes and constitutional text to reach profoundly counter-democratic outcomes still holds true.

Take the Court’s decisions on affirmative action and student debt. Both will of course reverberate widely, closing pathways for upward mobility and increasing the transmission of inequality across generations. But both also could claim some basis in precedent: The affirmative action case, for example, drew on ideas that earlier 2003 opinions involving the University of Michigan. The Chief Justice could, not entirely without cause, chide his dissenting colleagues for ignoring prior decisions. The student debt case drew on a decision last year narrowing the federal government’s power to address climate change. That 2022 decision broke dramatically with past law by minting a new rule against federal regulations that address “major questions.” The 2023 case just applied that “major question” doctrine—and in that sense was less destabilizing.

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