Not conservative, but more liberal

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Despite the media’s factless portrayal of the current Supreme Court establishment as “conservative,” this is really not the case. But his decisions during the mandate which has just ended show that he is no longer liberal.

A year ago, on July 4, 2021, The Epoch Times published my column evaluating the court’s performance during the term just ended. I pointed out that his rulings did not support the common view that the bench consisted of a 6-3 conservative majority. I noted that although six panel members adhered to various mixtures of originality and respecting precedent, none were militant conservatives in the sense that the other three members (Breyer, Kagan and Sotomayor) were militant liberals. The last real Tory activist in the court was James McReynolds, who retired in 1941.

My column showed that the major pronouncements of the Court during the previous Parliament mostly stuck to the pattern created by the “progressive” majorities from about 1940 to about 1990. This pattern had three elements:

  • Liberal activist courts have refused to respect the limits of the enumerated powers of the federal government. They have fabricated excuses not to intervene when Congress and the executive branch have meddled in all sorts of activities outside their constitutional jurisdiction.
  • While giving free rein to the federal government, liberal majorities in the 20th century manipulated the 14th Amendment to override state laws they disliked. Liberal jurists have invented a series of extra-constitutional “balancing tests” for this purpose.
  • They also attacked traditional culture and encouraged addiction. They ordered states to give financial benefits to people who had not earned them. They forced states to take an almost hostile stance toward religion. They overturned or rewrote longstanding policies on land use, domestic relations, pornography, abortion, legislative distribution, and criminal law. They even helped break the traditional rules of sexual behavior. They invented balance tests to promote these goals as well.

After studying the cases last year, I concluded: “The three [liberal] patterns appear in the constitutional cases decided this term. Indeed, the Roberts court is found to be more “progressive” than the Rehnquist court of the 1990s and early 2000s.

What a difference a year makes!

A year later, however, a change seems to be afoot. Although the decisions of the 2021 mandate (which has just ended) show no evidence of blatant conservative activism, they do show a departure from the liberal model.

Let’s take the three components of liberal judicial activism and compare them to the decisions of this term.

The Constitutional Limits to Federal Power

The first component of the 20th century liberal model was to refuse to rein in federal excesses. The judges have almost ceased to apply the limits of the Constitution to the powers of the federal government. They failed to respond as Congress invaded every aspect of American life. Moreover, they generally relied on federal bureaucrats and theImperial Presidency.”

This term, however, the court began to assert the rule of law against bureaucracy. American Hospital Assn. vs. Bécarra (pdf) refused to accept an administrative body’s interpretation of its own power. Instead, the court reversed a decision it deemed unauthorized. West Virginia v. Environmental Protection Agency (pdf) invalidated excessive regulation on “climate change”. National Federation of Independent Businesses c. Department of Labor (pdf) and Alabama Assn. of Realtorsv. Dept. of Health and Human Services (pdf) amended the Unauthorized Federal COVID-19 Regulations. However, the court upheld a constitutionally dubious presidential vaccination mandate on healthcare workers (pdf).

This year’s record against the administrative state is therefore rather good. But I’m sad to report that as far as Congress is concerned, nothing has changed: the current Supreme Court remains reluctant to answer even when a majority of states beg it to stop Congress from trashing the balance federal-state. An illustration is the court’s evasion of the lawsuit challenging Obamacare, even though (now that the individual insurance mandate has been repealed) Obamacare is flatly unconstitutional by the court’s own announced standards.

In all cases aimed at curbing bureaucracy, the court has only ruled that the agency exceeded the power Congress had given it. In no way did he decide that Congress exceeded its constitutional authority in creating or empowering the agency. This is unfortunate because reminding an arrogant Congress that it is subject to the Constitution should be a top legal priority right now.

The Court’s Treatment of State Laws

The second component of the twentieth-century liberal judicial model consisted of frequent attacks on states. A notable example is abortion case law, which began with Roe v. Wade (pdf) in 1973. In the years that followed, on a case-by-case basis, judges separated state abortion laws, applying their own (often inscrutable) policy choices.

This term ended the court’s foray into abortion law. Dobbs vs. Jackson Women’s Health (pdf) reversed deer. This was a very rare abandonment of a major Liberal-era precedent. But that only came because the case was particularly egregious, only after 49 disastrous years, and only by a 5-4 majority.

The judges also upheld most of the states’ COVID-19 warrants. Many conservatives were unhappy with these decisions. As I hinted in a previous essay, however, they suggested the court was about to overturn deer. Why? Because one of the main objections to the COVID-19 mandates was that they invaded certain rights not in the Constitution but invented by the court (“privacy”, “autonomy” and “bodily integrity”). The holding in deer derived from the same line of invented rights. The majority’s rejection of invented rights in COVID-19 cases suggested that the majority would also reject them in an abortion case.

The treatment of traditional culture by the Court

The third component of the liberal model consisted of attacks on traditional American culture – a kind of “judicial counterculturalism”. However, the cases decided during this last term have sent a clear message: the days of the Court’s counterculture are over.

A liberal court likely would have extended Supplemental Security Income (SSI) benefits to residents of Puerto Rico. In United States v. Vaello Madero (pdf), an 8-to-1 majority refused to do so.

Liberal activist judges created a ‘right’ to abortion not in the Constitution, but this court struck it down. Liberal activists have failed to protect the right to own and bear arms that is in the Constitution, and this court has protected it. To New York State Rifle and Pistol Assn. vs. Bruen (pdf), the justices also declined to extend liberal-style “balancing tests” to the Second Amendment. The opinion of Judge Clarence Thomas announced that the court will interpret the Second Amendment using the traditional methods, that is, by consulting the text of the amendment and the history surrounding it.

Particularly noteworthy was the justices’ protection of freedom of religion against the hostile “separation of church and state” rules created by their liberal predecessors. Kennedy v. Bremerton School District (pdf) upheld the right of a public school football coach to publicly pray after games. Carson v. Maken (pdf) canceled a Maine school choice program that barred religious schools from participating if the state decided they were too “bigoted.”

The court’s sympathy for religion sometimes clashed with its sympathy for the prerogatives of the state. In 2020, the court ruled in favor of Jewish and Catholic places of worship when New York State attempted to shut them down, allegedly to stem the COVID-19 pandemic (pdf). This term, however, judges declined to create a religious exemption from a New York vaccination mandate (pdf).

As you can see from the above list, these cases show that the court is neither politically conservative nor, especially in the case of the federal action, particularly constitutionalist. But if the trend continues, it will no longer be liberal.

The opinions expressed in this article are the opinions of the author and do not necessarily reflect the opinions of The Epoch Times.

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Robert G. Natelson, a former professor of constitutional law, is senior scholar of constitutional jurisprudence at the Independence Institute in Denver.