The difficulty in creating a solid majority in the two houses of the United States Congress, or in creating bipartisan consensus, is giving an additional political role to the Supreme Court (SC) of the country. Controversial issues such as the structuring of a new policy for immigration, on reproductive rights, redistricting, setting environmental rules, etc., which cannot be resolved by means of laws, end up in the Judiciary. In this regard, politicians linked to the Republican Party have used the conservative majority in the SC to impose their policies related to customs on various decisions of the Joe Biden government.

Three issues of great social impact were decided by the Court in a matter of days: the judges voted to overturn the Biden administration's plan to reduce the country's student debt, estimated at $1.7 trillion in 2023; they put an end to affirmativeaction in American universities that had existed since the 1960’s in order to combat discrimination; and, finally, they voted in favor of allowing LGBTQIAPN+ people to be discriminated against by traders and establishment owners, accepting the argument that they would be based on the First Amendment of the Constitution.

These decisions further accentuated the role the Supreme Court plays in the lives of the American people. In the context of the historic decision regarding affirmative action in universities, determining that race can no longer be considered a factor for admission, President Joe Biden expressed strong disagreement with the decision, stating that discrimination still exists in the country. He also highlighted that the Supreme Court is not an ordinary court, being composed of nine judges ideologically divided between conservatives and liberals. In this sense, it is important to note that among the six conservative judges, three of them were nominated by Donald Trump. At an event in Philadelphia by the right-wing organization Mothers for Freedom, the former president referred to his three nominations (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett) as "valuable". He also suggested that he might nominate more conservative judges if elected again to the White House. The conservative profile stood out when the Court overturned “Roe v. Wade” – which secured, in the early 1970’s, legal abortion throughout the United States – with six conservative votes.

Despite the recent controversial decisions, is the division between “liberals” and “conservatives” the rule in the Court, or are there cases in which cooperation between judges is chosen?

On June 23, the Supreme Court voted in favor of maintaining the Biden administration's immigration policy, going against the states of Texas and Louisiana that triggered the government against government guidelines. Both states wanted to maintain a tougher immigration policy, going against the federal government and recalling the era of former President Donald Trump.

With just one vote, the policy held is based on ensuring that US immigration officials can arrest and deport only individuals who pose a threat to the country's security and who have recently crossed the border. Diverging from the White House, the current governments of Texas and Louisiana do not support this policy, which made them take the case to the Supreme Court in order to ensure that the adoption of this new agenda was not mandatory for the states. The decision represented, however, a setback for these states and a victory for the current administration, which had already been facing criticism over its immigration policy.

The decision had support from both the liberal and conservative blocs of the court, demonstrating that there was no political issue involved. What happened, as Judge Kavanaughput it, is that “federal courts have traditionally not considered this type of judicial process,” making a decision difficult. Furthermore, he also sees that, for this type of case, Congress has “a range of tools to analyze and influence these policies”, which shows how the Court does not opine whether such actions are appropriate, moving away from the act of deciding on actions of this nature. So even though conservative Texas governor Greg Abbott disagreed with that result, President Biden has plenty of reason to celebrate.

It should be noted that this decision on immigration was not the only one that had support from both liberal and conservative judges. Other high-profile cases, in which conservative and liberal Supreme Court justices have come together to reject aggressive legal arguments advanced by conservative elected officials, are illustrative. These cases cover issues such as voting rights and Native American child welfare.

In the specific case of voting rights, the judges rejected a Republican attempt to weaken a voting rights law and ruled in favor of black voters in Alabama, ordering the state to redesign its congressional districts to ensure more equitable representation. The decision was reached by a margin of 5 to 4, with the union of conservative and liberal judges. So windfall deals exist on the Supreme Court, even if conservatives are in the majority.

Political ideology is still, however, the main factor for the polarization existing in the institution, reflecting the strong division that currently exists in the United States. For some years, conservatives and liberals have been increasingly distant from a consensus on various topics. The Republican Party, in particular, is taking on a more radical look since it has started to support deeply conservative measures in several states, such as Florida and Texas. In these places, stricter laws are being adopted, negatively affecting the migrant population and minorities. In Florida, governed by Ron DeSantis, for example, several laws against transgender people are created by the state government, something repeated by other states governed by Republicans.

Soon, within the Supreme Court, state legislation finds echo among judges who begin to adopt positions previously considered unlikely within the institution. Specifically on the issue of discrimination against LGBTQIAPN+ people by merchants, the Court voted in favor of a Christian web designer who refused to provide services to same-sex couples. Prior to the ruling, she was not allowed to announce that she would not work with this group because in her state, Colorado, such a stance was prohibited.

At the same time, the United States is heading towards the next presidential election, which will take place next year, and the decisions of the Supreme Court impact how the electorate will cast its vote and choose its new representatives, including the president. This position can be seen from research carried out on the decisions taken.

According to a survey carried out by the ABC network and the Ipsos institute, 52% of the population approved the decision against affirmative actions, against 32% who defend them; 45% supported the overthrow of the student debt forgiveness policy (40% were in favor of Biden's measure); and 43% supported the decision in favor of the Christian web designer (42% are against discrimination). This shows that the population is quite divided. It is noteworthy that, in view of the latest controversial decisions of the Court, 53% of Americans believe that the institution makes decisions based on political positions, not on law, a high percentage compared to January 2022, when 43% had the same position.

The current majority of the US Supreme Court has adopted several controversial decisions that affect the lives of millions of Americans. This problem brings back themes such as the restructuring of the body, as is the case of the Democrat deputy Alexandria Ocasio-Cortez, who has already defended an increase in the number of judges, aiming at the end of the conservative majority. It is observed that the two main presidential candidates in 2024, current President Joe Biden and former President Donald Trump, have been mentioning the role of the Court in their speeches, even if, if one of them is elected, there may not be a new appointment. The next judges to retire are Clarence Thomas, 73, and Samuel Alito, 71. The two will retire, possibly, between 2029 and 2031, and the term of the next president, which will start in 2025, will already have ended.

Therefore, considering the controversial decisions and debates resulting from these processes, the Supreme Court has a more relevant status in the lives of individuals and collectivities. Issues related to the power of laws and justice have been increasingly discussed by the US population, with part of them looking with concern at the next election campaigns, precisely because of the radicalism that entered American politics and which is mirrored in the Supreme Court. In addition, the increasingly frequent practice of appointing younger judges to the Supreme Court increases the possibility that the current majority with a conservative profile will remain for decades, as is the case of judge Amy Coney Barrett, Trump's nominee who entered the Court at 50 years.

The current dilemma facing Biden is nothing new in American history. During his tenure, between 1933 and 1945, Franklin D. Roosevelt had several clashes with a conservative Supreme Court that acted to boycott many of the New Deal policies. In 1937, he unsuccessfully tried to increase the number of judges. Even though he had a majority in both Houses, the president could not get support from two thirds of the Senate to modify the ideological composition of the Court. If Roosevelt failed to shake up the status quo at the height of his popularity, it is very unlikely that Biden can.

* Felipe Sodré Fabri is a International Relations graduate at Unesp de Marília xxxxxxx. Contact: felipe.sodre@unesp.br.

Thais Caroline Lacerda is the coordinator of the Latino Observatory, along with Marcos Pires, and holds a PhD in Social Sciences (Unesp-Marília). Contact: latinobservatory@latinobservatory.org.

Marcos Cordeiro Pires holds a PhD in Economic History (USP). Lecturer in International Political Economy (Unesp). Professor of the International Relations course (Unesp-Marília). Coordinator of the Institute of Economic and International Studies at Unesp (IEEI). Member of INCT-INEU. Lecturer at the Graduate Programs in Social Sciences (Marília) and International Relations “San Tiago Dantas” (Unesp-PUC-SP-Unicamp). Contact: marcos.cordeiro@unesp.br