2025 has already proven to be quite the year for change in our government, but the Supreme Court’s upcoming decisions are expected to play an important role in what’s to come for the future of the country. The Court will be delivering a round of consequential decisions in diverse areas of the law, ranging from topics like ghost gun regulations to gender-affirming care and beyond. Pinpointing exactly how the court will rule on these cases is difficult, especially considering the somewhat veiled nature of the institution and its decision-making process. To help clear the fog, past rulings from the Roberts Court and their impact on public opinion provide insight into what is on the horizon.
Public Opinion and Partisanship in the Court
In a study done at the close of the Court’s 2023 term, Pew Research Center found that 51% of Americans disapprove of “the way the Supreme Court is handling its job.” It is no surprise that favorability of the institution is just shy of an even split due to current political polarization. In an interview with HPR, Richard Fallon, Story Professor of Law at Harvard Law School with particular interest in Constitution Law and the U.S. Supreme Court, said that the country is currently experiencing “the most acute political division that [he] ha[s] ever observed in [his] lifetime.”
The public’s divided opinion of the Court can be attributed to a seemingly more conservative bend in their decisions. The Supreme Court maintains a conservative supermajority, a six-three split of justices across ideological lines. This gives conservative justices an upper hand in deciding what cases will be heard each term — a decision that requires a four-justice vote — and has also led to a trend of conservative-leaning rulings, like ending race-conscious affirmative action in Student For Fair Admissions v. Harvard or limiting the power of the Environmental Protection Agency in West Virginia v. EPA. According to Fallon, “[t]he composition of the court is hugely important in those decisions.” Although the Court’s composition is not always an indicator of partisanship in the law, today’s Roberts Court has demonstrated conservative-leaning rulings through a pattern of overruling long-standing precedent. This suggests that the Court entangles itself in the political process, ultimately leaving more than half of the country in discontent with the partisan nature of the institution.
The idea of a partisan Supreme Court is not novel. Andrew Tang, professor at the University of California, Davis School of Law, in an interview with HPR, says that “Every single justice ever appointed for the most part, back to the founding, has been chosen by a president, and those presidents have always considered whether those justices have the same view of the world, of the law, of the exigencies of the time.” The system in which justices are appointed to the country’s highest court makes it nearly impossible to have a nonpartisan court. However, Fallon warns against such kind of thinking, noting that while the system in which the justices are appointed is inherently partisan, this does not mean that “every decision on which they disagree is a political decision,” implying that disagreements among justices are not always due to their differing political ideologies, but rather a feature of the Court, where disagreement can occur regardless of partisanship.
Prior Court Decisions
Regardless of whether the Court itself is now a partisan institution, its decisions from the past two years have been highly controversial, sometimes stirring distinct public outcry.
The Dobbs v. Jackson decision is the most prominent example of the Court overturning decades-old precedent. The decision effectively overturned Roe v. Wade, a ruling that once protected the right to abortion, leaving states with the ability to regulate and even ban abortions in almost all circumstances. As a result, many Americans voiced their objection, with around 69% of Americans disapproving of the Roberts Court’s decision.
The Dobbs decision isn’t only unpopular with the public; it has major legal ramifications. Although the right to an abortion is not enumerated in the Constitution, it was recognized as a constitutional right under the theory of substantive due process in the Roe decision. The upheaval of nearly 50 years of precedent supporting this right resulted in an enormous and destabilizing shift in the law. This change puts other non-expressed substantive due process rights in danger. In his dissent, Justice Clarence Thomas argues that “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous’.” In other words, Thomas contends that the right to contraceptives, same-sex marriage, and relations should all be reconsidered.
Though this possibility exists, when asked whether this should be something to anticipate in the near future, both Fallon and Tang seemed doubtful. Fallon said that “he will be surprised if that happens” and Tang added that “we are a long ways away from” the reconsideration of these cases. Despite the Court’s conservative supermajority, it does not seem likely that the Court would be willing to hear cases that would reconsider other substantive due process precedents, especially considering that Thomas is the only justice who signed onto his concurring opinion in Dobbs. Yet, this Court has shown that it is not against overturning precedents that do not align with their ideological preferences, leaving it unclear whether they would be compelled to revisit these decisions. The Supreme Court has surprised the American public before, and it can do it again.
The current Court is making ripples in other areas of the law. In their most recent term, the Court struck down Chevron deference in Loper Bright Enterprises v. Raimondo. Under Chevron deference, the Court decided to “defer to an agency’s reasonable construction of a statute when the statute failed to clearly express Congress’s intent.” The Loper Bright ruling decided that courts would no longer defer to federal agencies’ expert opinion on unclear laws about administrative action.
The implications of Loper Bright are equally as significant as those resulting from Dobbs. Federal courts now bear the responsibility and power of interpreting congressional statutes despite having arguably less expertise than the agencies themselves. Professor Fallon predicts that the decision will likely cause “less stability in administrative law statutory interpretation than there would have been otherwise, and it will be easier for people to attack agency decisions.” Agencies now risk their power and authority being limited by a federal court’s interpretation of statutes. More broadly, the Court reiterates its lack of hesitance to reverse precedent that the justices do not agree with.
Finally, one of the more recent controversial decisions from the Supreme Court involves President Donald Trump. The Trump v. United States ruling establishes a three-pronged foundation in which a president has absolute immunity from criminal prosecution within the “exclusive sphere of constitutional authority,” a presumption of immunity for official acts within the “outer perimeter” of presidential duties, and no immunity for unofficial acts.
This decision illuminates some hypocrisy from a Court of textualists and originalists. In this ruling, the Court was able to establish legal rights not found in the direct text of the Constitution to the president while being unable to do so with abortion rights. Beyond this point of hypocrisy, some have argued that the ruling completely lacks precedent. In her dissent, Justice Sonia Sotomayor asserts that “the presumption in this Nation has always been that no man is free to flout the criminal law,” so the partial immunity this ruling establishes lacks historical precedent. Although it is too early to tell the implications of this decision, the Court has made one thing very clear to the American public, they should expect the unexpected.
Controversy
The Supreme Court, in its nature, has the ultimate responsibility of making decisions based on upholding the Constitution. Cases are often heard in the Court because of their controversial nature. So what makes this Court different?
The six conservative justices of the Court are divided into two groups. Justices Thomas, Alito, and Gorsuch are among the most conservative, while Chief Justice Roberts, Justice Kavanaugh, and Barrett often play the role of median voters. Yet in many of the Court’s most controversial decisions, these six justices typically vote against liberal Justices Sotomayor, Kagan, and Jackson. Although conservative to differing degrees, a supermajority of conservative justices is bound to shift their decisions to the right.
Today, the Justices’ political preferences are highly reflected in the Court’s outcomes. In 2019, at a time when the Court had only a 5-4 conservative majority, Tang wondered whether the conservative court would be able to “apply settled law neutrally, even if doing so leads to outcomes the conservative majority disfavors.”
The Court now has a clear conservative supermajority, and in HPR’s interview with Tang, he argues that “the frequency with which conservative justices are following their neutral principles to reach even surprising moderate, centrist or progressive outcomes, that frequency has dwindled.” Today, it is less likely that the conservative justices’ stances on a decision will deviate from their political ideologies. Thus, it is no surprise that the public’s opinion of the Court follows suit in its divisive nature.
However, the Court’s decisions may not be the only factor in public opinion regarding the Court. The justices’ behavior outside the courtroom also impacts how the masses view the institution. Most recently, ethics investigations of Justice Thomas revealed that he failed to disclose luxury trips and gifts that he had received from wealthy benefactors. Justice Alito faced similar accusations and also struck controversy after flying an upside-down American flag and an “Appeal to Heaven” flag outside of his home, both of which are associated with Donald Trump’s “Stop the Steal” campaign. Despite adopting a code of conduct just last year, the ethics of the justices on today’s court has led to public doubt in the institution’s legitimacy.
Additionally, today’s media is more partisan than ever before, narrowcasting to its audience to ensure engagement. Fallon believes that much of the controversy surrounding the Court stems from “most people get[ting] their news about virtually everything, certainly including what the Supreme Court is doing, through news sources that are overwhelmingly pitched to people with liberal or conservative predispositions.” The Court’s conservative rulings, ongoing ethics scandals, and the polarized state of public opinion and media all contribute to a greater debate about the institution’s legitimacy and ability to be impartial when deciding on these consequential cases.
Looking Ahead
Given all of these factors, it is very likely that we will continue to see more controversial decisions in upcoming Roberts Court terms. The controversy ultimately stems from the idea that today’s Court seems to interpret “stare decisis,” a once firmly held principle of stable law over time, as merely a suggestion. The resulting instability in law leaves the public in disarray when the Court’s decisions uproot firmly established precedents.
In many ways, the division on the Supreme Court mirrors the division throughout the United States today. Although 40% of the cases heard in the last term resulted in a unanimous decision, disagreement between the conservative and liberal justices was prevalent, with agreement rates of 10-30% between the three most liberal and conservative justices on the court. Among the public, party identification cues are stronger and more divisive than ever, and compromise across ideological lines feels out of reach. As the Court continues to overturn precedents, distrust in the institution’s ability to effectively and impartially fulfill its duty will proliferate.
There are already cases on the docket that will be important to look out for potentially controversial decisions. Both Fallon and Tang specifically named United States v. Skrmetti, a case that involves a Tennessee law that restricts gender-affirming care for minors. Skrmetti has the potential to be a landmark case, given lack of precedent on the topic. The case will determine whether a restriction on these medical treatments is a violation of the Equal Protection Clause of the 14th Amendment. Given the Court’s recent rulings along ideological lines, it is possible that this Court’s political goals will play an important role in the outcome of the decision.
More statutory issues arise in Seven County Infrastructure Coalition v. Eagle County, Colorado. Here, the Court will be tasked with interpreting whether the National Environmental Protection Act requires agencies to consider the downline environmental impacts of their actions. The Court will be required to interpret the act and whether the congressional statute requires agencies to look at long-term environmental impacts. In oral arguments, Justice Kavanaugh already notes the negative impact on agency action as a result of “the courts taking an overly aggressive role” in deciding what an agency can or cannot do under congressional statutes, which is indicative of the Court potentially providing more deference to these environmental agencies.
Garland v. VanDerStok is also on the docket in which the Court will decide whether the Bureau of Alcohol, Tobacco, Firearms, and Explosives has the authority to regulate “ghost guns”. These are firearms sold in kits and do not have serial numbers. This Court has a history of limiting the power of agencies, and a similar outcome here could result in a dangerous proliferation of untraceable firearms. But oral arguments in this case indicate a different trend in which conservative justices Roberts and Barrett seem to be skeptical of leaving ghost guns unregulated.
It is impossible to predict exactly what will happen in this upcoming term, but the Supreme Court has set a tone with Dobbs, Loper Bright, and Trump v. United States. The high court has proven to the American public that it is willing to disregard precedent, especially when it does not align with its conservative jurisprudential ideals. If the Supreme Court continues this trend, we will see indefinite turbulence in almost every aspect of the law and American institutions as a whole.
