Last week was a big week for the Supreme Court. The Court disposed of its rather muddled affirmative action precedents by declaring the entire practice anathema. It enforced constitutionally required separation of powers by rejecting Joe Biden’s executive order creating a $430B student loan forgiveness program. And finally, in keeping with the earlier Masterpiece Cakeshop decision, it reaffirmed the right for people in business to avoid compulsory expressive speech (in this case, web design) contrary to their religious beliefs.
This line of decisions comes on the heels of last year’s ruling in Dobbs, through which the Supreme Court overruled Roe v. Wade, returning the question of abortion to the political process within the states.
The Court has been doing a lot of work and, in the process, overturning a range of anti-democratic, activist precedents that have accrued since the 1960s. In the process, a number of decades-long conservative goals have reached fruition.
Recent Decisions Restore Principles of Self-Government
The recent decisions affirm the principles of majority rule, as limited by the plain language of the Constitution. In spite of the Left’s attempted ownership of the concept of democracy, this principle is not advanced by selectively and randomly vetoing legislative enactments and torturing constitutional language to reach favored conclusions.
Instead, self-government requires adherence to a fairly prosaic set of ideas: we elect men to make laws; the words that constitute laws mean what they say; this principle applies to the supreme law that is the Constitution; and, judges are supposed to interpret those words naturally according to their original meaning and neutrally as between the litigants.
This means that “equal protection” does not permit policies of collective punishment towards the white race because of certain past evils. Even under the Fourteenth Amendment, the law deals with individuals as individuals, not as avatars of preferred or disfavored groups.
Similarly, the separation of powers principles and the plain language of Article I of the Constitution require spending—including a massive loan forgiveness program—to originate in the Congress. Biden’s student loan decision may very well be a good policy or a terrible one. But the Court was rightly agnostic on the question of merits, instead asking whether the enactment is within the President’s power.
The decision touching on free speech and gay rights reflects an unavoidable tension, which the Court’s precedents have never fully resolved. Namely, antidiscrimination laws, particularly as applied to private businesses, represent an equal and opposite set of principles as those of the First Amendment. The former turn everyone de facto into a common carrier, a quasi-public institution, which must serve all paying customers equally. By contrast, the First Amendment permits expressive conduct by businesses, even offensive conduct, as well as the right of refusal under the principle of voluntary association.
The Left’s Unprincipled Approach to the Constitution
This week’s decisions present a real problem to the Left. They’re a reminder that courts, properly functioning, impose limits on the state. But leftist political principles are not easily reconciled with constitutional limits. We saw this in the original court-packing scheme under FDR. Today, the Left’s unhappiness is amplified because it believed history was on its side, and it also had no particular commitment to procedures or process. The Left wants results and wants them now.
The Left’s approach to politics is versatile and, procedurally speaking, unprincipled. Earlier victories arising from the Supreme Court, each far more aggressive and hostile to the limits of the constitutional text than those being pilloried at the moment, were applauded when they circumvented a stalled political process. This includes rulings ranging from abortion to gay marriage, where there was substantial public dissensus and, in some cases, conservative majorities opposing left-wing change.
One heard few concerns for Our Democracy™ back in those days.
Both sides’ partisans do this to some extent. But conservatives, independents, and moderates are understandably wary about messing with rules of game in mid-game through an extreme measure like packing the court. By contrast, the Left is truly indifferent about procedures, process, and the constitutional principle of precommitment. Rather, the Left is bold in the pursuit of its goals.
This kind of power move only makes sense if one concludes that their side will win all future elections and retain political power indefinitely. Otherwise, overreach means they pack the Court this time, and we re-pack it the next time, and pretty soon the court is as big as the U.S. Congress.
The Left has mostly captured the legal profession, and the capture is even more complete in the elite institutions that feed the ranks of the federal judiciary, Department of Justice, and related national institutions. Until recently, this meant the Left felt a great deal of comfort with court-led social change and activism. After all, judges were “our kind of people.”
But, as Barack Obama said, elections have consequences, and since 2000, a little over half of the time the country had a Republican president. Republican presidents mean Republican judicial nominees.
Just as the Church often became stronger under persecution, the small number of conservatives in elite legal circles have become more focused, rigorous, and purposeful since the creation of the Federalist Society in 1982. And that has meant, under Trump in particular, the availability of talented individuals to appoint to the high court who shared a philosophical commitment to originalism.
Trump’s appointees—Justices Gorsuch, Kavanaugh, and Barrett—are undeniably smart, and each of them had a golden resume before appointment to the Court. They are joined by their stalwart predecessors, Justices Alito and Thomas. Each of these justices deviates greatly from the profession’s leftward tilt. They are able to explain their rulings with a vigor and precision that resists attack.
Thus, the extreme hostility directed at them has the intensity reserved for class traitors.
The reality of self-government has been under stress for many decades from a variety of sources. Mass immigration, deficient civic education, and an overbearing and out-of-control administrative state all combine to discourage optimism and participation. The “fortification” of the 2020 election and the daily spectacle of the senile Joe Biden only increases collective cynicism.
As if recent revelations of government-coordinated censorship and the indictment of a former president were not enough, packing the Court would be the final nail in the coffin, confirmation that self-government, representation and limited government are all dead.
After all, even when they disagreed strongly with the Court’s Warren-era precedents, activists on the right spent many years honing the arguments, supporting candidates, pressuring elected officials and otherwise slowly pursuing relief within the process. Doing so again after court-packing would be pointless and humiliating; if somehow we obtained a future court that made a ruling that was worthwhile, the Court could simply be packed again.
Changing the size and composition of the Court to vouchsafe a particular, ideologically preferred outcome is the opposite of “blind justice” and completely incompatible with the rule of law. Yet one should not be surprised that people who rig elections also now aim to rig the courts.
Christopher Roach is an adjunct fellow of the Center for American Greatness and an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, Chronicles, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.