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Conservative Justices Bemoan Court's Future

The death of Antonin Scalia and the wobbliness of Anthony Kennedy has left the court’s conservatives where they least hoped to be: In dissent.
Image: The U.S. Supreme Court
The U.S. Supreme Court is shown as the court meets to issue decisions May 23, 2016 in Washington, DC. The court today sided in a 7-1 decision written by Chief Justice John Roberts with a Georgia inmate on death row in his appeal to the court citing efforts by prosecutors to exclude African Americans from a jury panel in the murder case.Win McNamee / Getty Images

Even after all of the opinions had been handed down, the Supreme Court term ended with yet another rebuke by the court’s conservatives, having been deserted by their sometimes-ally Justice Anthony Kennedy in another politically charged case. Led by Justice Samuel Alito, the right-leaning justices repeatedly sounded a dark note about the court’s future.

Kennedy, who this week was the deciding vote in leading the court to definitively strike down Texas’s abortion restrictions, infuriated the court’s three conservatives again by refusing to even take up a case pitting pharmacies’ religious objections against access to contraception.

Alito responded with a glum dissent — just as he did in the abortion case, Whole Woman’s Health v. Hellerstedt, and in last week’s affirmative action case, where Kennedy’s vote also swung the result in favor of existing programs.

“This case is an ominous sign,” Alito wrote in an unusual, 15-page response to the court refusing to hear Stormans v. Wiesman, leaving in place a Washington state requirement for pharmacies to stock emergency contraception. Chief Justice John Roberts and Justice Clarence Thomas joined him. It takes four votes for the court to hear a case.

Related: Supreme Court Declines to Hear Pharmacy's Religious Objections Case

“If this is a sign of how religious liberty claims will be treated in the years ahead,” Alito continued, sounding a lot like a man who foresees a bleak future for his side, “those who value religious freedom have cause for great concern.”

The Stormans, who own Ralph’s Thriftway pharmacy, said their First Amendment religious exercise rights were being burdened by new Washington state pharmacy regulations that required all pharmacies to stock emergency contraception (known also as Plan B). They were appealing a 9th Circuit ruling that found that “the rules are neutral and generally applicable and…rationally further the State’s interest in patient safety.”

Under the rules, individual pharmacists are allowed to refuse to dispense the drug, as Alito conceded, but to him, that was little comfort: “The pharmacy must keep on duty at all times a second pharmacist who can dispense those drugs,” he wrote. “We are told that few pharmacies are likely to be willing to bear this expense.” He even accused the regulators of explicitly targeting conservative Christians who believe — contrary to the weight of medical evidence — that emergency contraception is tantamount to abortion.

The Stormans case evoked 2014’s Hobby Lobby v. Burwell, in which Kennedy joined a majority opinion, written by Alito, to side with religiously owned corporations who did not want to cover contraception on their employee plan as required by the Affordable Care Act.

Denying the Stormans their day in court also seemed hard to square with Hobby Lobby’s follow-up this past term, Zubik v. Burwell. In that case, Kennedy was apparently unimpressed by the government’s contraceptive coverage accommodation plan for religiously affiliated nonprofits and, in an unspoken 4-4 deadlock, sent the case back to the lower courts for even more compromise.

Related: SCOTUS Sends Obamacare Contraception Case Back to Lower Courts

Like Hobby Lobby, for which Alito wrote the majority opinion, siding with the Stormans means conflating a regulation on a business with the individual conscience of its owners. Kennedy seemed open enough to that concept in his Hobby Lobby concurrence, which responded to Ginsburg’s dissent that corporations could not have religious rights.

“Free exercise [of religion] implicates more than just freedom of belief,” he wrote. “It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community….In these cases the plaintiffs deem it necessary to exercise their religious beliefs within the context of their own closely held, for-profit corporations.”

So what happened? Brigitte Amiri, senior staff attorney at the ACLU's Reproductive Freedom Project, pointed out that the Stormans had a tougher legal road to walk. They couldn’t sue under the federal Religious Freedom Restoration Act (RFRA), because that only applies to federal law, not state regulations. “Under the First Amendment,” she said, “a neutral rule can be upheld in the face of a free exercise claim. Under RFRA it’s a more exacting scrutiny.”

His vote in the Stormans case was a striking turn of events for Kennedy, the author of the court’s major gay rights opinions. He has been accused, including by fellow Justice Ruth Bader Ginsburg, of lacking empathy for women’s reproductive needs and for the lasting effects of racism. Kennedy was previously skeptical of Texas’s affirmative action plan before turning around and voting to uphold it in last week’s Fisher v. Texas.

Slideshow: Inside the U.S. Supreme Court

Meanwhile, Whole Woman’s Health was only the second time Kennedy has voted to strike down a restriction on abortion. (The first time was when he joined two other moderate conservatives, now-retired justices Sandra Day O’Connor and David Souter, to save the constitutional right to abortion but allow various restrictions on it.)

Whether or not there is reason for optimism for women’s health advocates in Kennedy’s recent votes, Alito seemed pessimistic enough to warn his own audience of future encroachments on religious rights.

Harvard Law School professor Mark Tushnet took note of Alito’s specific wording about the future. "Does Justice Alito foresee an extended period ("years ahead") in which conservatives won't be able to set the court's agenda?” Tushnet asked in a blog post.

Perhaps so. Along with the known wobbliness of Kennedy, the conservatives are already feeling Justice Antonin Scalia’s loss, along with the prospect of him being replaced by a Democratic president. Had Scalia been alive at the court’s last conference, he might have been the fifth vote to hear the Stormans case. (It’s not certain; Scalia did author the 1990 opinion that laid out the First Amendment standard on religious refusals.)

Either way, the conservative justices have lately been making bleak noises for their side. In February, two weeks after Scalia’s death, Justice Clarence Thomas spoke at oral argument for the first time in a decade. Implicitly referring to another major Scalia opinion strengthening gun rights, the 5-4 District of Columbia vs. Heller, Thomas spoke of “possession of a gun, which, at least as of now, is still a constitutional right.”

The “at least as of now” was not exactly optimistic for a defender of a robust reading of the Second Amendment. Kennedy was in the majority on that case, but if a Democrat manages to fill Scalia’s seat, he would no longer be the key vote.

This week, in the case where Thomas spoke up involving gun access for people convicted of misdemeanor domestic violence, he wound up dissenting.