Some Perspective on the Renegade Supreme Court Majority

We know they’re corrupt, but are they so out of the ordinary? David Cole is a law professor and the legal director of the ACLU. These are excerpts from a longer article from the New York Review of Books:

Over the course of the Supreme Court’s 232-year history, 110 men and six women have served as justices. Just a small handful of them have been “originalists,” holding the view that the only appropriate way to interpret the Constitution is to ask how its provisions were specifically understood at the time they were adopted. But in 2020 that handful became, for the first time, a majority of the Court when Amy Coney Barrett was confirmed, joining fellow originalists Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. (Chief Justice John Roberts is sometimes an originalist and sometimes not.) During the 2020–2021 term—Barrett’s first—the Court proceeded cautiously, mostly seeking consensus across ideological lines through narrow decisions.

But this past term, which concluded on June 30, these five individuals abandoned caution and exerted their newfound authority like few justices ever have. The Court eliminated the right to abortion, struck down a century-old New York law that limited the public carrying of guns, required Maine to fund religious education and a Washington State public school to allow its football coach to pray publicly at the fifty-yard line after games, blocked President Biden’s Covid vaccine mandate for large businesses, and denied the Environmental Protection Agency the authority to require power plants to shift away from coal in order to slow global warming. Compromise, consensus, and the rule of law are out; the radical exercise of power is in.

In several of its most controversial decisions, including those on abortion, gun control, and prayer, the Court invoked originalism to overturn long-standing law and precedent. That approach, if applied consistently, would upend virtually all of constitutional law. Because so few justices throughout American history have been originalists, constitutional law as it stands today, especially with respect to its open-ended guarantees of liberty, equality, and due process, bears little resemblance to how it was originally understood. To revert to that understanding would be plainly unacceptable; it would mean, for example, reviving “separate but equal” [schools for blacks and whites] and depriving women of equal protection. For better or worse, even the most committed originalists don’t apply originalism consistently, so it’s unlikely that the Court will resurrect Plessy v. Ferguson, the 1896 decision upholding segregation. But this past term, the new majority aggressively applied originalism to disastrous effect, and only they know how far they will go.

The biggest case of the term, and thus far of the century, was Dobbs v. Jackson Women’s Health Organization, in which five justices, including all three of [the previous president’s] nominees—Gorsuch, Kavanaugh, and Barrett—voted to overrule Roe v. Wade and about twenty other Supreme Court cases that had followed and applied Roe over nearly half a century. Dobbs will almost certainly be included among the Court’s worst decisions in history. Never has the Court eliminated a constitutional right so central to the equality and autonomy of half the nation. And never has the Court overturned precedent on such a transparently thin basis….

The majority’s conclusion that Roe was “egregiously wrong” rested on its view that the only appropriate way to interpret the Constitution is by reference to its “original understanding.” But there is another way to read the Constitution. It’s sometimes called the “living Constitution” or “common-law constitutionalism,” and it is the method used by virtually every justice in the Court’s history other than the five in the Dobbs majority, the late Antonin Scalia, and sometimes Chief Justice Roberts. Under that approach, the Court starts with the text of the Constitution but recognizes that its broad, open-ended terms—such as “liberty,” “due process,” and “equal protection”—were designed to evolve over time, through the accretion of precedent, the articulation of principle and fundamental norms, and reasoning by analogy. Under that approach, Roe is not “egregiously wrong” but plainly correct.

In a series of decisions over the last century, the Court has interpreted “liberty” in the Fourteenth Amendment in this way, and not exclusively by reference to its original understanding or “history and tradition.” It has relied on the provision to bar stomach-pumping to search for drugs and forced sterilization, and to protect the rights to use contraception, to marry someone of a different race or the same sex, to choose how to educate one’s children, and to engage in consensual sexual relations with adults of one’s own sex, despite the fact that none of these rights is expressly provided in the Constitution. The right to choose whether to bear a child is of a piece with these decisions and is therefore protected for the same reason. Roe is “egregiously wrong,” then, only if the methodology used by virtually every justice to have ever served on the Court is egregiously wrong….

Overturning precedent requires more than a determination that the prior ruling is wrong, because otherwise the Constitution would change each time the makeup of the Court does. Justice Alito conceded that the Court must also ask whether people have relied on the prior ruling before overturning it. But he callously dismissed such concerns… This is stunningly obtuse….While the majority opinion in Dobbs declared that “the most striking feature of the dissent is the absence of any serious discussion of the States’ interest in protecting fetal life,” the dissent quoted the majority’s own language back at it: “‘The most striking feature of the [majority] is the absence of any serious discussion’ of how its ruling will affect women.”

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court similarly elevated adherence to a crabbed view of history over both standard constitutional methodology and present-day reality….By the increasingly common margin of 6–3, struck down a New York law dating from 1911 that required individuals to demonstrate that they had a need to carry a gun in public before they could be licensed to do so….

The Second Amendment did not even protect an individual right to own a gun until the Court’s District of Columbia v. Heller decision in 2008. Before then, the courts, the Justice Department, and historians had long viewed the Second Amendment as protecting only the rights of states to field a militia, as a check on federal tyranny. In Heller, after a long and carefully orchestrated campaign by the National Rifle Association, the Supreme Court for the first time announced that the Second Amendment protected an individual right to possess a firearm in one’s home for self-defense…..At the time, however, the Court reassured the public that the Second Amendment right was not absolute and was subject to reasonable regulations…..

In Bruen, however, the Court went much further. In a decision written by Justice Thomas, it announced that the only gun regulations that the Constitution permits are those that have a direct analogue in laws that existed in the eighteenth century, when the Second Amendment was adopted, or possibly the nineteenth century, when Congress adopted the Fourteenth Amendment….In the absence of a specific historical precedent, any restrictions on the right to bear arms are unconstitutional—no matter how serious the threat guns pose to public safety or how reasonable the regulation…..

The Court’s approach is contrary to common sense, constitutional precedent, and the very history it purports to rely upon. Most fundamentally, why should states in the twenty-first century be limited to what states did centuries earlier, particularly when conditions have radically changed?

… The particular historical approach Justice Thomas announced, in which the only laws that are valid are those that mirror eighteenth- and nineteenth-century laws, applies to no other constitutional right. …With respect to virtually all other rights, courts also ask whether the state has a strong enough interest to limit the right, and whether it has done so in a sufficiently narrow way. This “means-ends” scrutiny, pervasive in constitutional law, governs free speech, free exercise, and equal protection claims, among others, and expressly allows for the assessment of contemporary needs and conditions….

But it gets worse. Defenders of New York’s law cited boatloads of historical examples of laws restricting the public carrying of weapons, spanning nearly seven hundred years. They include the Statute of Northampton, first enacted in 1328, which made it a crime to carry arms in public without the king’s permission and which was copied by several American colonies. Limits on carrying weapons continued through the founding era, and before and after the enactment of the Fourteenth Amendment. It should hardly be surprising that governments have long restricted the carrying of weapons in public.

Justice Thomas, however, found ways to reject each and every historical example. As Justice Breyer pointed out in a devastating dissent, Thomas found some “too old,” others “too recent.” “Some were enacted for the wrong reasons,” others “arose in historically unique circumstances.” Thomas’s wide-ranging set of excuses for rejecting analogues only underscores the subjective character of the enterprise and belies any claim that the historical method of interpretation significantly restrains judicial discretion….

Judging, especially at the Supreme Court level, requires not just a theory for interpreting constitutional law. It requires statesmanship, humility, an open mind, and, perhaps most importantly, respect for the institution and the accumulated judgment of one’s predecessors. As the Dobbs dissent noted, Justices Kennedy, O’Connor, and Souter [all nominated by Republican presidents] understood that:

The American public … should never conclude that its constitutional protections hang by a thread—that a new majority, adhering to a new “doctrinal school,” could “by dint of numbers” alone expunge their rights. It is hard—no, it is impossible—to conclude that anything else has happened here.

Next term the Court takes up the constitutionality of affirmative action, racial discrimination in redistricting, a sweeping challenge to the Indian Child Welfare Act, a claim that “expressive” businesses have a right to discriminate against gay couples … and an unprecedented and dangerous claim that state courts cannot police their legislatures when they gerrymander congressional districts. Whether the Court will continue its headstrong approach to all that has gone before it is likely to depend on how we as citizens respond to its initial salvos. If Americans mobilize, demonstrate, and vote on issues like abortion, gun control, and climate change, the Court will at some point have to take heed. But if we sit back and allow it to take away our rights and safety without a fight, there’s no telling how far the five [or six] justices who now exercise majority control will go.


It’s an excellent article, but I disagree with the author’s contention that this Court “will at some point have to take heed” of what the majority of American voters want. Short of Congress doing something like adding Supreme Court justices or limiting the Court’s ability to declare laws unconstitutional, this renegade Republican majority has absolute power. They can rule however they want and can always make up reasons for doing so.