The Supreme Court has final authority to make difficult judgment calls articulating the powers of government and the limits and constraints upon them. To merit the public trust, these judgments must not appear simply as assertions of individual value choices by the justices or willy-nilly discard long-established court precedents that profoundly affect people’s lives. Nor should they actively undermine the ability of governments to advance public purposes as established by a fair democratic process.
As the court begins a new term, regrettably, its recent history suggests that it lacks a majority of justices with sufficient concern about the basic continuity and integrity of the law or the ability of government to function.
In four sentences, Donald Ayer aptly describes a traditional, conservative perspective on the role of the United States Supreme Court within the American political system and the willingness of the court's majority (three of whom were appointed by Donald Trump) to veer far astray from that vision (as he describes in his New York Times op-ed). Mr. Ayer is hardly a liberal/progressive/socialist/woke -- take your pick -- critic; although he condemned Bill Barr, when Barr served as Trump's Attorney General, for his "efforts to place the president above the law", his conservative Republican credentials date back to the Reagan era:
In the 1980s, along with three of the current justices (John Roberts, Samuel Alito and Clarence Thomas), I participated in the Reagan revolution in the law, which inspired and propelled the careers of three other current justices (Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett).
Republicans, beginning with the Nixon presidency (when the party began its quest to remake the federal bench) through the founding of the Federalist Society (during the Reagan presidency) and the nomination of the current chief justice by George W. Bush (when John Roberts pledged, "I will remember that it's my job to call balls and strikes, and not to pitch or bat"), have asserted their principled opposition to activist judges.
Were liberal observers who recalled an earlier SCOTUS era lulled into a foolish faith in the court throughout this Republican crusade? Ryan Doerfler (who has some promising ideas on restraining an out of control court) seems to think so:
For older liberals, the tremendous civil rights advances by the Warren Court — the desegregation of schools in Brown v. Board of Education and the recognition of a right to interracial marriage in Loving v. Virginia, for example — loom larger in historical memory than they do for younger citizens. Drawing on those memories, the older cohort came to view the court as a bulwark against the rise of Movement Conservatism — even as the court grew more conservative, owing in part to Republican presidents having more nomination opportunities.
Well, not quite. While older liberals appreciated landmark decisions that represented great advances on behalf of civil rights, few of us listening to Roberts were reassured by his pledge. Our fears regarding the direction of the court began decades earlier. We knew what was up. Nonetheless (when the balance was still 5-4) we did hold out hope that (with the prospect of future Democratic presidents' nominations) the court might still serve, albeit less invariably, as a bulwark against injustice. (With a Justice Merrick Garland, that might have held.)
With the Trump Court (which Mitch McConnell regards as his foremost accomplishment), those hopes are gone. The court's secure majority now consists of ideologues in sync with the agenda of the Republican Party and, now that they find themselves in control, unrestrained by quaint conservative notions of judicial restraint or of a commitment to precedent. The guiding principles -- whether originalist or textualist or whichever precepts may be in vogue among legal scholars within the conservative legal movement -- that these justices profess to embrace are freely abandoned (without acknowledgement) whenever the majority is intent on achieving a particular result.
This majority hasn't revealed a glimmer of awareness of the fallibility of its judgment (or, for that matter, of the sordid, antidemocratic partisanship through which Republicans gained the majority). Moreover, in imposing a radical vision on the country, the justices' hubris has been joined with a stunning indifference to the human toll wrought by their decisions.
[More to come.]