The Supreme Court’s Conservative Revolution Is Already Happening

“in many ways, the Supreme Court’s conservative revolution is already here: The court hasn’t been this ideologically tilted in almost 100 years. Capturing the full breadth of this shift is difficult because the metrics we use to measure the court’s ideology are driven by hard-to-track factors like the types of cases the court takes up. For the first time in decades, too, a single justice isn’t holding the reins. The conservative justices can now assemble a majority more easily, giving them the power to push the court even further right.

That power may take some adjusting to — for both the public and the justices. The past term showed that there will still be plenty of room for disagreement on the precise path forward. One example was a high-profile religious liberty case where the most conservative justices took their fellow GOP appointees to task for issuing a ruling they saw as too timid. And the main priority of the liberal justices, now distinctly in the minority, appeared to be damage control. Moreover, some big decisions were taking place outside the public eye.”

“According to the Supreme Court Database, 60 percent of all decisions last term went in a conservative direction, as well as 59 percent of close decisions — which is to say, decisions in which the minority side had three or four votes. That makes the court’s previous term the most conservative term since 2008”

“Increasingly, too, the justices are making big decisions without fully explaining their reasoning, through cases that have emerged through the court’s “shadow docket,” where the justices are asked to rule quickly, without the extensive legal briefing or oral arguments that happen in normal Supreme Court cases. Sometimes, these orders are only one sentence long. And the justices don’t have to say how they voted or why.

Normally, this swiftness and secrecy isn’t especially newsworthy because the rulings that come out of the shadow docket just aren’t that significant. But that has changed in recent years. Some of the court’s biggest rulings in the past year — including its decision to strike down COVID-19 restrictions on religious gatherings and its decision to allow a highly restrictive abortion law to go into effect in Texas — came out of the shadow docket.

The shadow docket is very difficult to track, for obvious reasons — it’s hard to know what the justices are even doing.”

How Trump Has Redefined Conservatism

“In 2004, Pennsylvania Rep. Patrick Toomey was the face of the conservative insurgency. An anti-taxes, anti-spending hawk, Toomey was one of many conservative upstarts who primaried a more moderate fellow Republican; in Toomey’s case, longtime Pennsylvania Sen. Arlen Specter.

The Republican president at the time, George W. Bush, sided with Specter, who ultimately won by less than 2 percentage points. After Specter switched parties in 2009 when polls showed Toomey defeating him in a primary, Toomey won the seat in 2010.1

But despite the conservative bona fides that helped Toomey get elected, he experienced backlash from the GOP after becoming one of seven Senate Republicans to join Democrats in voting to convict former President Donald Trump in his second impeachment trial.

Toomey’s transition from conservative insurgent to a pariah among certain factions of his party is not unique, though.

Sen. Mitt Romney called himself “severely conservative” during his 2012 presidential bid and planned to repeal the Affordable Care Act. But when he became a senator years later, he often bucked Trump’s agenda and twice voted to convict Trump in his impeachment trials, facing a drumbeat of criticism from Republicans in response.

To be clear, Toomey, Romney and now-ousted GOP party leader Rep. Liz Cheney have not abandoned the policy views that a decade ago flagged them as conservatives. But in the interim, Trump and his presidency may have shifted the ideological ground beneath their feet.”

“looking just at our 2021 survey data, a politician’s support for Trump has come to define who party activists think of as conservative. Romney, Toomey and Sasse were all rated as fairly liberal Republicans despite their conservative voting records in Congress”

“Staunchly pro-Trump politicians (or Trump-adjacent politicians), like Florida Gov. Ron DeSantis, former Vice President Mike Pence, Sens. Tom Cotton, Josh Hawley and Lindsey Graham, and Trump were all clustered together on the more conservative end of the spectrum, even though there is quite a bit of difference, ideologically speaking, between these men.”

“despite his ideological heterodoxies, Trump was rated as more conservative than all but 10 of the 114 politicians we asked about. Ideology, in other words, isn’t just about policies.5”