Things could have been so different. The Supreme Court’s 2016–17 term, which ended with a flurry of activity on June 26, underscores how much liberals and progressives lost by not coming out for Hillary Clinton in the 2016 election in the numbers that had earlier come out for Obama. The Court’s term opened in October with eight justices, evenly divided between liberals and conservatives. Virtually everyone expected Clinton to win. In short order, she would appoint the late Justice Antonin Scalia’s successor, and the Court would have a liberal majority for the first time since 1972. The possibilities were endless. But Clinton did not win, and the term ended with a nine-member Court featuring Neil Gorsuch, appointed by President Donald Trump to fill Scalia’s seat.
It’s still early, but initial signs are that Gorsuch will be every bit as conservative as his predecessor, and possibly more so. Thus, as they have been for more than a decade, the Court’s rulings in closely divided cases will likely be determined by Justice Anthony Kennedy, a conservative Republican appointed by Ronald Reagan, who is open to argument and has cast deciding votes in cases recognizing marriage equality, ending the death penalty for juveniles, and preserving affirmative action. But if Trump gets an opportunity to replace Kennedy—or Ruth Bader Ginsburg or Stephen Breyer, all of whom are near or over 80—that moderating influence will disappear, and the Court will be as conservative as it has been in a century.
The most encouraging decisions of the recently concluded term involved free speech. In Matal v. Tam, the Court ruled unconstitutional a federal law denying registration to trademarks that “disparage” individuals. The trademark office had refused to register “The Slants,” the name of an Asian-American rock band that sought to repurpose and reclaim an ethnic slur. In language that seemed as directed at campus speech controversies as at the case at hand, Justice Samuel Alito wrote for the Court: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” Every justice agreed that the law was invalid.
In Packingham v. North Carolina, the Court was again unanimous, striking down a state law that made it a crime for individuals who had once been convicted of a sex offense to use social-networking sites that permit children to become members or to create personal Web pages. The law had been applied to a man who celebrated a victory in traffic court by posting a message on Facebook thanking God. In a decision that will almost certainly be cited in every Internet speech case that follows, Justice Kennedy maintained that the Internet has become a critical venue in the marketplace of ideas, and invalidated the North Carolina law as far too sweeping.