The Supreme Court is about to show why it is now the most important policymaking arm of the conservative movement.
One of the key characteristics of today’s Republican Party is its anemic agenda; at the national level it organizes itself not around policy goals but around owning the libs. This is one of the central facts underlying the debate over the filibuster: It harms Democrats much more than Republicans, because Democrats actually want government to do things. When Republicans take power, they pass a big tax cut, then pretty much call it a day.
The GOP does, however, have a comprehensive negative policy agenda — a list of things it wants to stop Democrats from doing, which is where the Supreme Court comes in.
Republicans know that it would be politically impossible to enact many of their ideas at the national level; you might have noticed that when they controlled the White House and Congress in 2017 and 2018, they did not try to pass legislation that would outlaw abortion, repeal state-level gun regulation or disband the Environmental Protection Agency.
But they can have the Supreme Court do it.
As it is, on abortion it now looks all but certain that the court will strike down Roe v. Wade later this year (though abortion will remain legal in states Democrats control). These cases show how the court’s majority is checking off items on a long list of ways it wants to remake U.S. law.
First, the court will be hearing two cases on affirmative action in higher education, which the right has wanted to outlaw for as long as affirmative action has existed.
In a series of prior cases, the court narrowed the scope of what kind of affirmative action policies are legal, but left universities with some ability to consider race in admissions. In the last decision by the court in 2016, it ruled that universities could include race as a consideration, but its use had to be narrowly tailored and demonstrated to be the only way the schools could accomplish their admission goals.
That case produced an angry dissent from Justices John G. Roberts Jr., Clarence Thomas and Samuel A. Alito. Two of the justices who ruled with the 4-to-3 majority — Anthony M. Kennedy and Ruth Bader Ginsburg — are no longer on the court. There is approximately zero reason to believe that affirmative action in education will survive the court’s current term.
Second, the court agreed to hear a case concerning how the EPA applies the Clean Water Act. While the facts of the case look narrow — it concerns whether the waters on the plaintiff’s property qualify as wetlands, and what kind of permit is required to build on such land — it will be up to the court to decide how far to go when they inevitably rule against the EPA.
They could go quite far, not just in this case but in subsequent ones. We can expect to see the court taking one case after another in which it reaches deep down into statutory interpretation, always with the same end result: to restrict government’s ability to regulate, so long as it’s doing so in service of goals such as protecting the environment, workers, or public health.
Reasonable people can disagree about the value of stare decisis, the principle that the court should respect its prior decisions except in the most exceptional circumstances. But it’s clear that this court no longer even pretends to do so. However much it dresses up decisions with conservative movement catchphrases (Originalism! Textualism! The Framers!), it is no different from a party that wins control of a legislature, then begins passing bills to change the policies it objected to when it was in the minority.
Here is the trick Republicans have pulled. First, they used the minoritarian features of the the U.S. system to shift the Supreme Court dramatically to the right. Two successive Republican presidents were elected with fewer votes than their opponents; then they appointed five justices between them. Most were confirmed narrowly by a Senate where Republicans represent far fewer Americans than the body’s Democrats do, even when those Democrats are in the minority.
Then that court turns itself into a policymaking body, striking down laws passed to serve liberal objectives such as guaranteeing voting rights or protecting the environment, and limiting government’s ability to act in one area after another.
As many legal observers have pointed out, liberals were fooled by a brief period in the Supreme Court’s history — running roughly from Brown v. Board of Education in 1954 to Roe v. Wade in 1973 — into thinking the court is something other than a guardian of the rights and privileges of the rich and powerful.
But that is what it has almost always been, and what it is today. The idea that the court just calls “balls and strikes,” in Chief Justice Roberts’ famous phrase, is more laughable than ever. This court is the Republican Party’s policymaking vanguard, and its ambitions are nearly as limitless as its power.
