The front page of today’s Washington Post has the headline “Big losses for civil rights at high court.” The article by Justin Jouvenal makes a sweeping indictment of the Supreme Court since the arrival of President Trump’s three appointees as “the first since at least the 1950s to reject civil rights claims in a majority of cases involving women and minorities,” a change that “brings to an end a streak of successive courts expanding such protections that began with the dawn of the civil rights era.”
The analysis draws on the Supreme Court Database maintained by political scientists Lee Epstein, Andrew Martin, and Michael Nelson, and it contrasts the 270 decisions of the Court over the five terms starting with Justice Barrett’s arrival in 2020 with what came before, going back to the Warren Court.
To which the question follows: Really? Have the past several terms with an originalist majority brought historic defeats for civil rights, women, and minorities? Only if you don’t count religious freedom or freedom from “reverse” racial discrimination as civil rights. (They most certainly are.)
Remember the victories for religious freedom and against religious discrimination for providers of social services in Fulton v. City of Philadelphia (2021), for parents who choose religious schools in Carson v. Makin (2022), and for the high school football coach who wished to say a quiet personal prayer in Kennedy v. Bremerton School District (2022)? How about the relief the Court granted to parents of diverse religious backgrounds in Mahmoud v. Taylor (2025) so that they could opt out from their young children being subjected to “LGBTQ+”-themed content that went against their beliefs?
Well, it turns out that the database on which the Post relies silos religious-liberty cases into a separate category that is invisible to the civil rights metric. And Jouvenal seems so oblivious to ideological blinders that he observes, “Over the past five terms, the justices have voted in favor of parties asserting religious rights 98 percent of the time, far outstripping any other court in roughly 75 years” as if it bolstered rather than undermined his indictment of the Court’s recent civil rights record. To him, the narrative behind those cases is “the degree to which the court has allowed religion to push into public life.”
The article’s treatment of racial discrimination cases is equally telling. The Post characterizes the Court’s ruling against racial preferences in the education context in Students for Fair Admissions v. President and Fellows of Harvard College (2023) as an anti–civil rights decision. But the students whose rights were vindicated were Asian Americans being systematically disadvantaged on account of their race. The database’s coding convention—that a ruling is “pro–civil rights” only when it expands preferences based on race, and “anti–civil rights” when it protects individuals from racial discrimination—is an ideological choice dressed up as a neutral methodology. That categorization of the Harvard decision gets it backwards by disparaging a landmark victory for the colorblind Constitution that corrected decades of judicial tolerance of racial discrimination in higher education.
The current Supreme Court isn’t less defensive of civil rights. It’s less liberal. But that isn’t as catchy a headline. This graph shows the real story: Republicans finally stopped nominating liberal justices.
Past Supreme Court nominations by Republican presidents included justices who turned out to be staunchly liberal, including Chief Justice Warren and Justices Brennan, Blackmun, Stevens, and Souter. And that does not count other appointees such as Justices O’Connor and Kennedy who cast liberal votes in a number of key cases.
It is actually an improvement in the Court’s civil rights record that its current originalist majority embraces the colorblind Constitution championed by the first Justice Harlan in his dissent in Plessy v. Ferguson (1896). It marks progress that the current Court is less likely to disparage religion and more likely to provide robust protection to the rights enumerated in the First Amendment—not to mention dropping the habit of prior majorities that periodically took advantage of constitutional silence to impose their own policy predilections. The Post’s analysis to the contrary rests on raw ideology—a perspective that rejects constitutionalism and, we can only hope, will never find a majority on the high court again.