“This activist, radical MAGA court faces a crisis of legitimacy,” said Sen. Jeff Merkley (D-Ore.), which in turn creates a “crisis in our democratic republic.”
Many of the criticisms that this court has received, particularly that it is overly political, have been received by previous courts as well. What we are seeing is a kind of repetition.
In the 1960s, conservatives criticized the Warren Court’s bold, liberal decisions. “Impeach Earl Warren” became a popular slogan, and figures like Barry Goldwater proclaimed that of the three branches of government, today’s Supreme Court is the least faithful to the principles of legitimacy in the exercise of its power.
Today, the opposite is true. A 6-3 supermajority shifts both the conservatism and liberalism of the law. These shifts reflect the natural process of legal change, in which the Court’s majority tends to strengthen its own power and the dissenting party argues for legal constraints. This was true during the Warren Court in the 1960s, when liberals dominated the judiciary. It remains true today.
Although the Warren Court was accused at the time of endangering the judiciary and the nation (think of its shocking decisions on school prayer, Miranda warnings, congressional redistricting, and desegregation), history has shown that this was not the case.
Today, Roberts Court decisions, including majority opinions from earlier this year, could have similarly far-reaching effects. Dobbs v. Jackson Women’s Health Organizationabolished the constitutional right to abortion, or Students for Fair Admissions v. Harvard UniversityHe criticized affirmative action in higher education.
The impact of these and other transformative rulings remains to be determined.
It is understandable that liberals might feel that this new era is beyond their understanding of democracy, but change does not mean the Supreme Court is broken. It just means that a Roberts Court is a conservative Warren Court.
This role reversal is jarring to both liberals and conservatives, but it is also logical: The flexibility that conservative opponents have long despised is often essential to an accountable judiciary. At the same time, liberal justices, who have absorbed what were once strict conservative principles, serve to remind the majority of their former views and to restrain the Court’s excesses.
Several cases this term illustrate this pattern. Let’s start with judicial deference to the executive branch. In the 1960s and 1970s, liberal courts were often skeptical of the work of the executive branch. But with President Ronald Reagan in office and Jimmy Carter’s appointees filling many of the appeals courts, conservatives began to favor the so-called Chevron Deference required the court to accept a reasonable agency’s interpretation of the law.
Now, the politics of respect for government institutions have been reversed. This year, Roper Bright Enterprises v. RaimondoConservatives have given up Chevronignoring the protests of the liberal justices. The majority acknowledged that conservative jurist Justice Antonin Scalia had been an “early champion.” ChevronBut only the Supreme Court’s three liberal justices defended the ideas once espoused by a conservative icon.
“Throughout its existence,” Chief Justice John G. Roberts Jr. argued, “Chevron Even if it was coherent enough to be called a rule, it was a “rule that demands justification.”
A similar development occurred with regard to precedential binding, the principle that the Supreme Court should generally adhere to its previous decisions: Many of Warren’s most famous decisions overturned long-standing precedents, despite protests from conservatives.
But more recently, liberals seeking to protect their 20th century victories have sought to defend precedents from conservative attacks. Dobbsthat “egg It’s been horribly wrong from the start,” liberals counter. egg “It undermines the legitimacy of the courts.”
Similarly, this year, the court Chevron Liberals have argued that this doctrine replaces the principle of judicial humility with the principle of judicial arrogance.
But if left and right are swapping places, this realignment will happen only gradually. And rightly so. Despite many dramatic decisions, the Warren Court was also selective in the timing of its decisions. For example, it took liberal justices several years to uphold the right to use contraception.
Judges, like most of us, do not like to be embroiled in apparent contradictions and so will not be held to whatever view is most convenient at any given moment.
But a gradual shift in conservative positions is often desirable: The justices who currently hold the majority must address real issues in pragmatic and nuanced ways, rather than relying on the rigid logic that often characterizes their angry dissenting opinions.
take United States v. RahimiThe case concerned a federal law banning people subject to domestic violence restraining orders from possessing firearms. Roberts upheld the law by an 8-1 vote, with the majority, made up of both conservatives and liberals, relying more on “common sense” than the rigid fundamentalism that has long dogged conservative justices.
Some of Roberts’ critics have accused the justices of cynically supporting Trump and Republicans, but the court’s bold conservative vision, like Warren’s liberal one, is bipartisan.
For example, the recent immunity ruling for President Trump could be beneficial for presidents of both parties. Imagine how this case would play out if a former Democratic president had faced criminal charges.
Other critics allege the justices are corrupt or have conflicts of interest. These concerns, too, harken back to the 1960s, when liberal Justice Abe Fortas was roundly criticized for accepting large corporate payments for a series of lectures. (Another scandal later led to his resignation.)
Thus, while judicial ethics may be a suitable topic for reform, transformative courts have faced harsh ethical criticism in the past.
Of course, the Roberts Court is conservative and the Warren Court is liberal, and this fact alone is sure to cause many commentators to worship one and detest the other, but fierce debates over judicial policy should not obscure the commonalities between the left and the right.
Today, as in the 1960s, the rule of law persists, albeit in changing ways.
