Despite the naysayers, the Supreme Court continues to demonstrate a rare independence of thought in our polarized age, issuing several decisions just this month that featured shifting coalitions of conservative and liberal Justices, completely defying any simple categorization as partisan.
Progressives, along with some conservatives, have taken up trashing the Supreme Court and recommending all sorts of radical changes to its operation, from packing it to term limiting the Justices, as something of a hobby whenever a decision they don’t like is issued. This unfortunate habit has been particularly pronounced on the political left, especially since President Donald Trump appointed three conservative Justices, shifting the majority towards that side of the aisle 6-3. As a result, criticism of the Court has appeared to reach something of a fever pitch over the last few years, infecting both the mainstream media and academia to the point where many insist the institution is fundamentally illegitimate, complete with an explosion of content from the vitriolic if not downright insane to the supposedly sober and academic. For example, even a recent decision limiting gun rights for domestic abusers was greeted with outright scorn by The Guardian’s Moira Donegan, who concluded, “The lives of women who have survived domestic abuse should never have depended on what nine unaccountable jurists imagine the founding era to have been like; that they did is an insult to citizenship itself.” She wrote this after accusing conservatives of not caring about women’s lives in “the exercise of raw power,” for which they have created “selective, often fact-free fantasies of the past.” A bit more reasonably if not accurately, Georgetown Law assessed “The Supreme Court’s Pro-Partisanship Turn” as early as 2020. As Richard L. Hasen saw it, “The United States Supreme Court’s conservative majority has taken the Court’s election jurisprudence on a pro-partisanship turn, which gives political actors freer range to pass laws and enact policies that can help entrench politicians (particularly Republicans) in power and insulate them from political competition. The trend on the Supreme Court is unmistakable whether it reflects the Court majority’s cynical view that American politics is ‘sordid, partisan, and unfair’ or more crassly a self-interested reality of Republican-appointed Justices doing the bidding of the Republican Party.” Similarly, the left-leaning Brookings Institute considered “How to rein in partisan Supreme Court justices” in 2022. “The civics class model of the Supreme Court is that of an impartial adjudicator, above politics. It is an ideal still prized by the American public. Recently, however, the Supreme Court is looking more and more partisan…The impression of a highly politicized court is the result of decisions that flout bedrock principles of judicial comportment—norms such as meaningful respect for precedent, open and deliberative process, evidence-based, reasoned, and publicly explained decisions, deference to democratically elected or selected officials, and good faith fidelity to what relevant legal provisions say and what they have long been understood to mean.”
For the most part, these and similar articles have appeared sporadically in response to various rulings progressives disagree with for their own partisan reasons. As is typical of human nature, the outcome they want is, in fact, partisan, but they only ascribe partisanship to others, assuming they’re somehow impartial observers and incapable of being biased while everyone else is irredeemably guilty. The Supreme Court, however, continues to demonstrate a rare independence of thought in our polarized age, issuing several decisions just this month that featured shifting coalitions of conservative and liberal Justices, completely defying any simple categorization as partisan. Despite Ms. Donegan’s ranting in The Guardian, the decision she railed against is a clear example of this trend and was also an outcome most progressives preferred. Last week, the Court ruled a lopsided 8-1 in favor of restricting gun rights for those subject to domestic violence restraining orders. The case itself was prompted by the Biden Administration in an effort protect an existing federal gun regulations, and according to NBC News, the “ruling indicates that some long standing gun laws are likely to survive despite the court’s 2022 decision that expanded gun rights. In that case, the court for the first time ruled that there is a right to bear arms outside the home under the Constitution’s Second Amendment.” Chief Justice John Roberts wrote the majority opinion, noting the obvious that “our nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.” Preventing those currently under restraining orders, “fits comfortably within this tradition.” The majority opinion united some of the most liberal and conservative members of the court. Justices Brett Kavanaugh, Amy Barrett, Neil Gorsuch, and Samuel Alito voted the same as Justices Sonia Sotamayor, Elana Kagan, and Ketanji Brown Jackson, representing voices from all sides of the political spectrum. The lone dissent came from Clarence Thomas, who claimed, “Not a single historical regulation justifies the statute at issue.” None other than Attorney General Merrick Garland lauded the outcome, saying the law “protects victims by keeping firearms out of the hands of dangerous individuals who pose a threat to their intimate partners and children.” A week earlier, the Court ruled against a ban on bumpstocks instituted by President Trump in another firearms related case. This decision was 6-3, along the typical ideological lines and technically expanded gun rights, but given that it overturned an executive order from a Republican administration, it too can be seen as evidence that what we generally call partisanship doesn’t translate directly to the Court. Oddly, President Biden himself seemed to suggest the now overturned ban was instituted by his administration, claiming he’s used “every tool in my administration to stamp out gun violence” and vowing to keep up the fight. “We know thoughts and prayers are not enough,” he said. “I call on Congress to ban bump stocks, pass an assault weapon ban, and take additional action to save lives — send me a bill and I will sign it immediately.”
Earlier this week, the Court issued another decision in a case concerning freedom of speech that defied easy ideological categorization. At issue was what lengths the Biden Administration can pursue to coerce social media companies to remove posts or limit their exposure in the name of misinformation. Given the actions of the government and social media companies in the lead up the 2020 election, when they actively suppressed true information about Hunter Biden’s laptop, and during the pandemic when the silenced dissenting voices regarding lockdowns and vaccines, the issue was significant to conservatives, who believe the same thing might happen in this year’s election. The Court, however, ultimately decided against the conservative position on technical grounds. This time the 6-3 majority was Chief Justice Roberts and Justices Barrett, Kavanagh, Sotomayor, Kagan, and Jackson, who claimed the plaintiffs lacked standing to make the case in the first place. “The plaintiffs fail, by and large, to link their past social-media restrictions and the defendants’ communications with the platforms,” Justice Barrett wrote. The remaining conservative members of the bench provided a scathing dissent – against three of their own conservative colleagues. Justice Alito, writing for the minority, claimed the “jawboning” by the Biden Administration was “blatantly unconstitutional,” calling the case itself “one of the most important free speech cases to reach this court in years.” The majority ruling “permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think.” By ruling on technical grounds, the Court is telling the Biden Administration and future administrations, “If a coercive campaign is carried out with enough sophistication, it may get by.” The ruling itself might have been technical, but as even CNN noted, it could have an immediate impact on the 2024 race as conservatives feared. “Of immediate significance, the decision means that the Department of Homeland Security may continue to flag posts to social media companies such as Facebook and X that it believes may be the work of foreign agents seeking to disrupt this year’s presidential race.” In a world where the CIA secretly colluded with Biden campaign operatives to claim his son’s laptop was Russian disinformation, this development isn’t exactly encouraging for what might happen this year. Perhaps needless to say, the Biden Administration praised the outcome, “The Supreme Court’s decision is the right one, and it helps ensure the Biden Administration can continue our important work with technology companies to protect the safety and security of the American people, after years of extreme and unfounded Republican attacks on public officials who engaged in critical work to keep Americans safe,” Press Secretary Karine Jean-Pierre said in a statement.
Nor is the first time this term the Court has rejected arguments that seemed conservative-friendly on the surface on technical grounds. Earlier this month, the Court allowed the abortion pill mifepristone to continue to be available by mail without an in-person doctor visit. CNN described the Court’s ruling as “a significant setback for the anti-abortion movement in what was the first major Supreme Court case on reproductive rights since the court’s conservative majority overturned Roe v. Wade in 2022.” This time the ruling was unanimous, 9-0, with all the conservative Justices on the supposedly hopelessly partisan Court uniting with progressives to protect access to drugs that cause abortions. Similar to the free speech case, the Justices ruled that the doctors and abortions groups seeking to halt mail in access to mifepristone did not have standing. “We recognize that many citizens, including the plaintiff doctors here, have sincere concerns about and objections to others using mifepristone and obtaining abortions,” Justice Kavanaugh wrote. “But citizens and doctors do not have standing to sue simply because others are allowed to engage in certain activities – at least without the plaintiffs demonstrating how they would be injured by the government’s alleged under-regulation of others.” Under the Constitution, Kavanaugh reasoned, “a plaintiff’s desire to make a drug less available for others does not establish standing to sue.” “Citizens and doctors who object to what the law allows others to do may always take their concerns to the Executive and Legislative Branches and seek greater regulatory or legislative restrictions on certain activities,” he concluded. Once again, Attorney General Garland was pleased, saying that the Justice Department was “gratified” that the ruling “ensures that mifepristone remains available for women across the country on the terms approved by the Food and Drug Administration.” The combination of these two decisions has, in fact, prompted judicial analysts to begin wondering whether the Supreme Court has grown “exasperated” with the Fifth Circuit Court of Appeals, widely seen as the most conservative venue in the federal judiciary. “For the second time in 13 days, a cross-ideological majority has thrown out a controversial lawsuit that right-wing plaintiffs had deliberately steered to the 5th Circuit,” explained CNN’s Supreme Court analyst Steve Vladeck, a professor at the University of Texas School of Law. “Just like in the mifepristone case, the lawsuit was brought in a single-judge division; the district court entered nationwide relief; the 5th Circuit upheld much of the relief; and the Supreme Court held that these plaintiffs should never have been allowed to bring this case in the first place,” he added. “The real question is whether, given this pattern, the lower courts in Louisiana, Mississippi, and Texas actually get the message.” Putting this another way, he sees a trend in the supposedly partisan court slapping down conservatives, the exact opposite of what has been claimed.
Incredibly, the Supreme Court wasn’t done yet. As I was writing this post, they issued yet another major, non-partisan decision protecting access to abortion by dismissing a case. This time the state of Idaho had sued to block a Biden Administration regulation that required healthcare providers who received funding from Medicare and Medicaid to support emergency abortions even though they might conflict with the state’s far more restrictive abortion laws. “An Idaho law prohibits abortions unless necessary to prevent a pregnant woman’s death; the law makes no exception for abortions necessary to prevent grave harms to the woman’s health, like the loss of her fertility,” the opinion read. “EMTALA requires hospitals to provide abortions that Idaho’s law prohibits. When that is so, Idaho’s law is preempted. The Court’s ruling today follows from those premises. Federal law and Idaho law are in conflict about the treatment of pregnant women facing health emergencies.” “The on-the-ground impact was immediate,” Justice Kagan added in a concurring opinion, referring to the time when the pro-life law took effect, noting that Idaho’s largest health provider “had to airlift pregnant women out of Idaho roughly every other week” for emergency abortions. The more liberal wing of the Court was joined in this decision by conservatives, Justices Barrett, Kavanaugh, and Chief Justice Roberts, meaning a 6-3 pro-abortion access decision saw three right leaning members of the court concur with the three left leaning members, which doesn’t exactly scream partisanship, especially when Justices Thomas, Alito, and Gorsuch all dissented. At the risk of repeating myself, the Biden Administration was pleased. Health and Human Services Secretary Xavier Becerra issued a statement, “The Court’s order today means women in Idaho should once again have access to the emergency care that they need while the case proceeds in the lower courts. However, it does not change the fact that reproductive freedom is under attack. The Biden-Harris Administration is committed to protecting access to emergency medical care for everyone in America and ensuring that women get the care they need.”
I could point to other recent decisions, such as the 9-0 ruling that President Trump can remain on the ballot earlier this year, but at this point, it should be obvious that attacks on the Court as irredeemably partisan say a lot more about the partisans making them than the Court itself – as is often the case. The Court will undoubtedly make any decisions fair minded people can disagree with – in particular, I do not agree with the free speech decision by any means – but that doesn’t imply that their decisions are guided solely or even mostly by partisan politics. Sadly, progressives increasingly do not believe in any kind of disagreement in the first place, declaring anyone who deviates from their plan to centralize power as fundamentally illegitimate, and attacking anyone who does so even when reality fails to support their position.
Confessions of a Conservative Atheist 