SCOTUS conservatives made clear they will consider anything. The right heard them.

Three moves this week show how the real lesson of this Supreme Court term isn't what most journalists were writing about.

Far-right lawyers and far-right lower court judges got the go-ahead signal from the U.S. Supreme Court this year — and they are quickly following through.

What, you ask, do you mean? “I was told it was a 3-3-3 court.” “I was told Chief Justice John Roberts was in charge of the court again.” “I was told Justice Amy Coney Barrett has an independent streak.”

Those might have been the messages that the court wanted the public to see, and there are kernels of truth behind those claims — but they do not tell the full story. More importantly, they were not the messages being sent to far-right lawyers and judges.

The message they got was: “Disregard precedent where you think we might do so.” “Try out previously fringe ideas.” “Give us more cases.”

In short: “Do what you want.”

Obviously, Donald Trump’s lawyers, even after a Republican appointee on the U.S. Court of Appeals for the D.C. Circuit agreed that Trump had no immunity case, kept pushing. And, Roberts gave them what they wanted — more delay of his prosecution and an ahistorical decision that future courts, and the country, will eventually need to fix.

Trump was by no means alone.

Although the U.S. Court of Appeals for the Fifth Circuit was generally seen as the circuit whose extremist rulings were constantly getting reversed, the reality is more complicated. It is true that the justices reversed or vacated the Fifth Circuit in six merits cases this term, as Adam Feldman’s data confirm. And yet, the justices also affirmed the Fifth Circuit in three merits cases. In those cases — S.E.C. v. Jarkesy, Campos-Chaves v. Garland, and Garland v. Cargill — the court, respectively, held that a common method of agency enforcement is unconstitutional, cut off a means of challenging deportation orders, and rejected the Trump administration’s bump stock ban that was defended by the Biden administration.

Winning only one of every three cases might seem like a bad record. But, for right-wing ideologues, this is a huge success. All three wins moved the law to the right — Jarkesy, with potentially significant follow-up effects.

What’s more, the record proved what I warned back at the start of the term:

[T]he 6-3 conservative high court is more likely to take advantage of the extremism as often as, if not more than, it acts to stop it. This Supreme Court has no real reason to want the appeals courts to hold back from extremism. Occasional pushback from the justices to the most lawless moves from the appeals courts can become a feature, not a bug, of efforts to take the law in this country further and further to the right.

And so it was.

And, the lesson was learned.

This is all the more important a lesson in the context of how I described this Supreme Court term — as a type of “contingent” term, with Roberts, in effect, setting up two courts: one that could aggressively push back against a continued Democratic administration in 2025 and an extremely different, deferential one that could exist in a second Trump term.

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Over the first three days of this week, there have been three key examples — at all levels — of the right’s next chapters being written, preparing for either contingency.

On Monday, Kim Davis — the former county clerk in Kentucky who refused to issued marriage licenses to same-sex couples — filed a brief in the U.S. Court of Appeals for the Sixth Circuit, arguing that Obergefell v. Hodges — the 2015 Supreme Court case bringing marriage equality to the nation — should be overruled because it was “egregiously wrong.”

Although the filing acknowledged that the Sixth Circuit lacks the authority to overturn Obergefell, the appeal noted that Davis is arguing now for Obergefell to be reversed “to preserve” the argument for a potential later appeal at the Supreme Court.

Contingency.

Mathew Staver of Liberty Counsel, a long-practicing, Christian far-right lawyer is lead counsel on the brief.

The filing itself echoed the language used by the Supreme Court in Dobbs v. Jackson Women’s Health Organization in overturning Roe v. Wade and quoted from Justice Clarence Thomas’s concurring opinion in the case for his support for revisiting other related precedents, including Obergefell.

Lawrence v. Texas is the Supreme Court’s 2003 decision striking down sodomy laws. Griswold v. Connecticut is the Supreme Court’s 1965 decision striking down a ban on the use of contraceptives.

More contingency.

Then, on Tuesday, a district court judge took his contingent cue from questions Jarkesy left unresolved — issuing an order blocking the National Labor Relations Board from going forward with enforcement proceedings against Elon Musk’s SpaceX.

U.S. District Judge Alan Albright, a Trump appointee in the Western District of Texas, granted a preliminary injunction against the NLRB — finding that the NLRB’s administrative law judges are “unconstitutionally insulated from removal” and that the same is true of NLRB’s members themselves.

SpaceX is represented in the lawsuit by Morgan Lewis, a strong “management-side” law firm. The case is one of a handful of challenges to the NLRB brought in 2024, including another SpaceX case that didn’t go how SpaceX and Morgan Lewis wanted (that judge is still ruling, even on Wednesday, against SpaceX), so client and counsel apparently just brought a new case in a new district — and got a new judge who gave them the ruling they wanted to tee up to the Fifth Circuit and, if they’ll take it, the Supreme Court.

Contingency.

Finally, on Wednesday, the Fifth Circuit was back for more. In an en banc decision of the full court, the court, on a 9-7 vote, struck down the Federal Communications Commission’s “universal service” fee as an unconstitutional tax levied in violation of the Legislative Vesting Claus and, likely, the nondelegation doctrine.

Such a move — made in an opinion by Judge Andrew Oldham, a Trump appointee — makes Supreme Court review likely if the Justice Department seeks review. What’s more, the decision sets up a circuit split, making Supreme Court review all but certain if sought.

Contingency.

The nine judges striking down the provision represent the extreme right wing of what is an extremely conservative court. Eight of those nine are the six Trump and two Reagan appointees on the court. The final is a George W. Bush appointee, Judge Jennifer Elrod.

The seven dissenting judges are a mix of judges trying, more or less, to do law. They include four Democratic appointees — the final Democratic appointee did not vote in the case because of when she joined the court — and the three other George W. Bush appointees.

The Trump and Reagan appointees on the Fifth Circuit knew exactly what they were doing, just as Albright, SpaceX, Morgan Lewis, Davis, and Staver did.

Contingency.