The ultimate question today is whether the new majority on the United States Supreme Court, whose views Ronald Reagan’s Solicitor General has called not “conservative” but instead “reactionary,” has the good sense not to blow our nation apart.
Certainly the picture of the court painted in a new book by New York Times columnist Linda Greenhouse, Justice on the Brink, fully justifies the “reactionary” characterization.
The book chronicles the 2020-2021 term of the court. It proceeds through the term in chronological order with detours to sketch the individual justices and to discuss the substantive issues the court addressed, including race, religion, abortion and property rights, among others. Greenhouse concludes that the court is now controlled by a five-justice right-wing majority and that the extreme views some of those justices have expressed in the past, together with their penchant for colorful expressions, are cause for concern.
One problem is that they seem to be indifferent to the historical accident that gives them their power. Although Republican candidates have received a majority of the votes in only two of the last eight presidential elections, and Republican presidents have held office slightly less time than Democrats, Republican presidents have appointed six of the nine justices, including the new majority of five as well as the chief justice, John Roberts.
The senior justice of the court, Justice Clarence Thomas, takes pride in being a judicial bomb thrower. As Greenhouse puts it, he is fond of “chimerical legal theories.” To take just one example, he has suggested that states should be free to adopt their own religions.
Next in seniority is Justice Samuel Alito, who has suggested he might be willing to strip state courts of their authority under state constitutions to review the actions of a state legislature in the selection of presidential electors.
Now thanks to President Donald Trump, those two have been joined by three who achieved their positions by making a variety of dog whistles that attracted right wing endorsements.
Justice Neil Gorsuch launched his own attack on the administrative state by writing an opinion as a lower court judge in which he said courts interpreting the law governs federal agency action had no duty to heed the way the agencies themselves interpret that law. She says he is an “unrestrained firebrand who pours rhetorical gasoline” on Justice Alito’s ideological “smoldering anger.”
Justice Brett Kavanaugh has waxed so enthusiastic about gun rights that he compares them to free speech, even though the First Amendment, which says “no law” abridging free speech is allowed, differs from the Second Amendment, which says gun rights are to be “well-regulated.”
Finally Justice Amy Coney Barrett made her mark in the academic world with an article which argued that Catholic judges could not, in good conscience, refuse to follow church teaching in their decisions. To be sure, the article addressed the death penalty, but its implications for her views on abortion rights are obvious.
Of course, there are four other justices. Chief Justice Roberts is portrayed by Greenhouse being politically aligned with the five but with a true conservative temperament that makes him anxious to keep the court out of political hot water. But the five do not need his vote.
The three appointees of Democratic presidents dissent in various ways. Justice Sonya Sotomayor bells the cat by denouncing the extremism of the new majority. Justice Elena Kagan takes a more politic approach and searches for common ground. Justice Stephen Breyer preaches to the majority that the court should not be seen to be political, a position that has the unfortunate consequence that he, at age 82, refuses to resign even though President Joe Biden would be in a position to replace him. Ironically, Breyer got his seat only because his predecessor, Justice Harry Blackmun, stayed on the court until he was sure that President Bill Clinton would pick his replacement.
Holding the country together is what the Supreme Court is supposed to do. In the Federalist Papers, the framers said the purpose of the Supreme Court was to prevent the states from fighting each other. In other words, to settle disputes, not to create them.
In its signal failure to do that, the 1857 Dred Scott decision, the Supreme Court struck down the Missouri Compromise Congress had enacted to resolve disputes over slavery. The opinion’s factually dubious reasoning – that the framers in 1787 did not consider slaves or even descendants of slaves to be “citizens” – is the kind of “originalism” the new majority today says it embraces.
More importantly, some of the statements the majority justices have made employ the kind of “rhetorical gasoline” that the Dred Scott opinion used when it described the descendants of slaves as “beings of an inferior order” who “had no rights which the white man was bound to respect.” The Civil War followed in 1861.
If we are lucky, the current court will never face an issue as divisive as slavery was in 1857. But Greenhouse touches on a case that got little attention but carries the potential to cause great conflict.
In that opinion, the court cut back on the doctrine that has long allowed reasonable government regulation of private property. The court held that California could not require farmers employing migrant labor to allow union organizers come onto their property for a certain number of hours a year. Without explanation, the opinion drops the traditional reasonableness approach and simply says that state regulation was impermissible.
In future disputes, the opinion may become the cornerstone of an attempt to resurrect court doctrines, abandoned in the 1930s, which were used to outlaw many aspects of Franklin Roosevelt’s New Deal. If so, the government’s ability to impose reasonable regulations on banks, corporations, commerce, and agriculture may come under serious threat. And those whom those regulations protect will not like it, especially if we are told “there is no government regulation a court is bound to respect.”
Stay tuned.
Luther Munford is a Northsider.
