[ad_1]
If you ask folks on the left to describe the contemporary Supreme Court, you may hear one or more common words used to describe it: “rogue” or “extremist” or “illegitimate” or “broken.” But when I look at the court, I see something quite different: the last federal bastion of the pre-Trump right.
The court is definitely not liberal. But it’s equally clear that it is not MAGA. Even as it has inevitably rendered decisions that outrage progressives, it has also blocked much of the Trumpian populist project, and it has done important work to preserve the fundamental institutions of American democracy.
The Supreme Court is in many ways a throwback to the status quo before Donald Trump descended his escalator. Prior to Trump’s arrival on the political scene, there were of course abundant disagreements, many of them heated, between the American right and left. But there was also broad agreement — imperfect, of course, and subject to critique from both sides — on the importance of facts and logic and consistency and precedent. Liberals and conservatives may have been ideological competitors or even combatants, but they mostly agreed on a set of rules or, better, “norms.”
To understand the contrast between the MAGA movement and the current Supreme Court, one has to understand the profound practical and philosophical differences between the two. The MAGA approach to the power of the law can be conveyed in a single sentence: It is to be used to reward friends and punish enemies, consequences be damned. Or to put it another way, MAGA jurisprudence demands victory and then relishes the liberal outrage that follows.
There are two cardinal examples. The first is obvious — the legal fight to steal the 2020 election, now the foundation of Trump’s most serious indictment. At the center of that fight were two truly extraordinary legal theories: the “independent state legislature doctrine” that argued the Constitution essentially gave state lawmakers the power to control federal elections in their states, including the selection of presidential electors, immune from state judicial review; and the former Chapman University law school dean John Eastman’s novel interpretation of the 12th Amendment that would have enabled Vice President Mike Pence to declare Trump the winner of the election even without obtaining 270 electoral votes.
The second example of the MAGA approach to the law is represented by Gov. Ron DeSantis’s campaign against the First Amendment in Florida. In his bid to run for president as a more ruthlessly efficient version of Trump, the governor, a graduate of Harvard Law School, has trampled free speech in his efforts to punish Disney for dissent, regulate social media moderation and ban mandatory corporate diversity training that expresses disfavored opinions about race. He’s also restricted speech about race and racial equity in public university classrooms.
While the Supreme Court has not yet heard challenges to DeSantis’s authoritarianism (lower courts have blocked enforcement of multiple Florida statutory provisions), it not only refused to hear MAGA challenges to Joe Biden’s victory, but has also rejected a number of aggressive Republican efforts to expand state power over elections. This year, a clear majority of the court gutted the independent state legislature doctrine, and it struck down an Alabama redistricting map that heavily favored Republicans as an unlawful racial gerrymander. If that weren’t enough to signal the court’s independence from Trumpism, in 2022 it granted the Democratic majority in the House access to Trump’s tax returns.
Yes, the court is conservative, and so it has offered rulings that dismay and even enrage liberals. Chief among these was the ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. But conservative legal critiques of Roe far predate Trump. In fact, Roe was so broad that a liberal jurist no less renowned than Ruth Bader Ginsburg once described it as “breathtaking” in scope. If anything, Dobbs was a less revolutionary ruling than Roe. After all, by declaring abortion a constitutional right in Roe, the court removed the legality of abortion from the democratic process. Dobbs returned the question to voters, who now have a chance to cast their ballots based on the policies they prefer.
I do not wish to idealize the contemporary Supreme Court. It is still a human institution and, as such, subject to human flaws. The recent ethics controversies at the court — whether they involve private airplane flights with wealthy friends or other conduct that is technically legal or was within existing ethics rules — are not the subject of this essay. But my thoughts broadly mirror those of Judge Michael Ponsor, who critiqued the justices’ sometimes casual approach to potential conflicts thus in The Times: “You don’t just stay inside the lines; you stay well inside the lines.”
I have attempted to describe what the court is not. But to understand how the court can sometimes enrage both liberals and the Trump right, we have to understand what the court is. If the MAGA approach to the law can be summed up as “reward friends and punish enemies, consequences be damned,” this court’s jurisprudence is better summed up as “apply the text and original public meaning of the law, consequences be considered.”
This is the approach to the law I learned as a young member of the Federalist Society in law school in 1991. It is the approach that’s dominated the conservative legal movement since the Federalist Society was founded in 1982. And by taking that approach, the court has made itself one of the last remaining strongholds of pre-Trump conservative philosophy on the American right.
In other words, the best way to analyze the current court isn’t through a partisan lens, but rather through one grounded in legal theory, specifically by understanding the tension between originalism and incrementalism. A purely originalist approach (the term “textualist” is closely related) might interpret the law based solely or principally on its text — or the original public meaning of the text, which often involves a historical inquiry into the understanding of the law when it was passed — and impose a ruling with little regard to broader context or practical consequences.
An incrementalist (sometimes called “institutionalist” or “consequentialist”) approach, by contrast, seeks to make narrow rulings and thus avoid disruption; it is respectful of precedent and prefers the nudge to the shove. There is no hard and fast line between these philosophies, of course. Incrementalists can also be originalists, but the former tendency will mean that they prefer to move more slowly, and are more apt to let respect for precedent influence their rulings, even if there is a potential conflict between the court’s current jurisprudence and the plain meaning of the text.
Originalism is generally deemed to be a conservative legal philosophy, whereas incrementalism can have a more universal appeal. Indeed, as I alluded to above, one of the more famous defenses of incrementalism comes from Ginsburg, hardly anyone’s idea of a conservative. During a 1993 lecture at New York University, Ginsburg approvingly quoted Justice Oliver Wendell Holmes, who said that “judges do and must legislate,” but they should do so “only interstitially” — i.e., slowly and deliberately.
Ginsburg prophetically noted that “doctrinal limbs too swiftly shaped, experience teaches, may prove unstable,” and applied this analysis to Roe v. Wade. She described Roe as an outlier compared to the court’s jurisprudence on sex discrimination, and wondered aloud about an alternative reality in which the Roe court had struck down only the most “extreme” anti-abortion statutes without displacing “virtually every state law then in force.” Even as she continued to support Roe, Ginsburg offered what was arguably an incrementalist critique of the ruling.
It’s increasingly clear that an originalist versus incrementalist framework is the clearest way to evaluate the three full Supreme Court terms since Amy Coney Barrett was confirmed in 2020 and secured the 6-3 conservative majority.
The first term, in 2020-2021, was very much incrementalist. The paradigmatic case was Fulton v. City of Philadelphia, which challenged Philadelphia’s decision to exclude Catholic Social Services from participating in the city’s foster care program for refusing to certify same-sex couples as foster parents. (The Catholic agency believed such certifications would violate its religious beliefs regarding marriage.) The court’s opinion in favor of the agency was both unanimous and quite narrow. It explicitly declined to issue a more sweeping ruling that would have overruled a 1990 case called Employment Division v. Smith, a controversial (and many conservatives believe, mistaken) opinion that weakened constitutional protections for the free exercise of religion.
The second term was far more originalist, with two sweeping rulings serving as emblematic: Dobbs v. Jackson Women’s Health Organization and New York State Rifle and Pistol Association v. Bruen. In Dobbs, a divided court reversed Roe — a ruling that, much like Roe itself, sent shock waves rippling across the political landscape. In Bruen, the court not only struck down New York’s handgun carry permitting system, it went well beyond a narrow finding to issue a ruling that dictated the analytical framework for all gun rights cases going forward — a “text, history and tradition” test that’s already been used to strike down gun control laws across the country.
And what of the most recent term? The court swung back in the incrementalist direction and, in two of its most consequential cases, decisively rejected aggressive right-wing arguments. In Allen v. Milligan, the court didn’t merely reject Alabama’s gerrymandered voting maps, it rejected the state’s attempt to reverse decades of case law by changing the legal test for determining whether a gerrymander violates the Voting Rights Act. In so doing, the court preserved the legal mechanisms for scrutinizing historically discriminatory and highly racially polarized states and localities.
In Moore v. Harper, as I noted above, the court decisively rejected the core of the so-called independent legislature doctrine, a MAGA legal argument that rested on a context-free, ahistoric and hyper-literalist interpretation of constitutional provisions that would essentially grant state legislatures the power to ignore voters and unilaterally choose how to apportion their states’ electoral votes.
Even the most contentious cases of the entire term — 303 Creative v. Elenis, which upheld the right of a wedding website designer to refuse to design websites for same-sex weddings, and the two Students for Fair Admissions cases, which struck down the Harvard and University of North Carolina race-based affirmative action programs — were relatively modest in scope.
In the first case, Colorado had stipulated in advance — that is, agreed on the underlying facts — that 303 Creative’s websites were “expressive” and that 303 Creative had no problem serving gay customers if they wanted help designing other types of websites. (Colorado’s decision to stipulate to these key facts is puzzling, to say the least.) The case was therefore nothing more than a straightforward application of at least 80 years of First Amendment precedent prohibiting the state from forcing citizens to speak in favor of ideas they oppose.
The Harvard case, especially when read alongside the voting-rights decision in Allen v. Milligan, does not eviscerate race-conscious remedies for documented racial discrimination. Instead, it states that the process must be individual and not categorical. As Chief Justice John Roberts wrote at the end of his majority opinion, “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination.”
Indeed, if there’s a common thread between Allen and Harvard, it’s a judicial rejection of invidious racial discrimination. Alabama’s long and uncontested history of systemic racism has made race-conscious remedies necessary. Likewise, it was Harvard’s own history of discrimination against Asian applicants that sorely and perhaps decisively undermined its argument for affirmative action. In that sense, Harvard approached the court in Alabama’s shoes, with its case stained by a clear record of racial injustice.
Going forward, the grounds for debate and the path to forging Supreme Court majorities is clear. Originalist or textualist arguments empower meaningful change. Incrementalist or institutionalist ones offer a path of greater restraint. And both conservative and liberal advocates can apply those principles to win at court.
Let’s examine, for example, one of the progressive legal movement’s most important recent victories — the court’s 2020 opinion in Bostock v. Clayton County, which held that employers who fire employees simply for being gay or transgender violate Title VII of the Civil Rights Act of 1964. Even before the decision, when I read the transcript of the oral argument I was struck by the skill of the advocates for the gay and transgender plaintiffs. They knew the court would focus on both the text of the statute and the consequences of its ruling. So they took care to make two key arguments: that the text was on their side, and also that the court could rule for the L.G.B.T. Q. plaintiffs without drastic repercussions for American law.
I spoke to David Cole, the national legal director of the American Civil Liberties Union and one of the advocates in a case consolidated with Bostock, and he described an approach that was both textualist and institutionalist. “We felt that if we were going to win,” he said, “we were going to win on textualist grounds.” At the same time, however, he sought to assuage incrementalist concerns that the textual reading would have disruptive effects on society at large. He won over not only Justice Neil Gorsuch, one of the more purely textualist justices, but Roberts as well, the conservative majority’s most ardent incrementalist voice. The court’s decision was 6-3 in favor of the L.G.B.T. plaintiffs.
Cases such as Bostock, or Allen, or Moore — as well as those like Dobbs and Bruen — are emblematic of the conservative legal philosophies that shaped my own philosophy and career. The best conservative jurists emphasize reasoning over outcome. Facts matter. Evidence matters. Their minds are open to litigants’ arguments. They do not simply decide that their side or tribe will win and then reason backward to get the result they desire.
It’s also important to understand that the six conservative justices are not an undifferentiated bloc. In the most recent term, Roberts, Barrett and Brett Kavanaugh were most frequently in the court’s majority. But the liberals Elena Kagan and Sonia Sotomayor were more frequently in the majority than the conservatives Samuel Alito and Clarence Thomas.
Indeed, it is a notable irony that Alito and Thomas are consistently the two justices most revered in the MAGA G.O.P. even though they ascended to the high court, respectively, 11 and 26 years before Trump assumed the presidency. This alignment — and the corollary that Trump’s own appointees have proven less reliably Trump-y — has not gone unnoticed in MAGA world. Befitting his strategy of outflanking Trump on the right, DeSantis told the conservative radio host Hugh Hewitt that he will “do better” than the former president on judicial nominations. He said he respected Gorsuch, Kavanaugh and Barrett, but he would look for justices more like Thomas and Alito. In other words, not even arguably the most prominent self-appointed heir to the MAGA movement believes that Trump’s appointees are sufficiently MAGA.
In the recent Apple TV+ series “Ted Lasso,” the title character explains that goldfish have only a “10-second memory.” I fear that much of the analysis of the Supreme Court is goldfish analysis, dominated not by a holistic understanding of all the court’s jurisprudence, but rather by the joy or anger generated by its most recent important case. When Senator Josh Hawley roundly condemned the conservative legal movement from the right as a failure after Bostock, he was being a goldfish. Likewise, when progressive critics call the court “rogue” or “illegitimate” after the most recent round of disagreeable outcomes — even just days after the same court handed down Moore or Allen — they too are being goldfish.
That’s not to say that taking a longer view will yield universal agreement or respect. Well before the emergence of Trump and the MAGA movement, the right and left had their share of sharp disagreements. But the conservative court’s legal philosophies stand squarely within America’s legal tradition, especially when matched with appropriate judicial restraint. Collectively, these values provide a basis for both sides to make their case, and they represent the core of a judicial philosophy that has proved it can transcend partisanship. “Conservative” is not a synonym for “Trumpist,” and with each new term, the court demonstrates that pre-Trump ideas and pre-Trump values have life left in them yet.
[ad_2]
