Many on the Left have sought to delegitimize the United States Supreme Court because it's an institution they don't control. The way this operates is that if progressives achieve their preferred outcomes, they cast themselves as fierce defenders of American norms and institutions. When they don't get their preferred outcomes, however, they talk loudly about "reforming" or even "abolishing" the norms and institutions they view as obstructing the "progress" they desire. It's extraordinarily cynical and unserious, as are the bogus "ethics" concerns and phony "scandals" they've been pushing. The undermining of SCOTUS hasn't only come from shouting activists; we've seen if from senior elected Democrats, from governors to the highest-ranking Democrat on Capitol Hill. Reckless threats can have serious consequences.
One of the lines employed is that the Supreme Court has been "captured" or "packed" by the "right wing," which glosses over the fact that the Court's current ideological composition has been brought about by the winning elections and the normal filling of vacancies. Despite their atrocious, partisan behavior in this realm over the course of decades, the Left has lost fair and square for now. They're struggling to cope with that reality, in the face of high-profile rulings they oppose. Another line is that the current Court trashes precedent in pursuit of an ideological agenda. Setting aside the fact that precisely that sort of activism the Left demands from their ideological allies in the judiciary, in pursuit of outcomes-oriented "justice," the facts tell a different story about the Roberts Court and respect for precedent:
Is this still the stare decisis court? The data (looked at three different ways) says yes it is. The Roberts COurt overturns/modifies precedent less than its predecessors did. #SCOTUS pic.twitter.com/cmKxRAI5eT
— Jonathan H. Adler (@jadler1969) June 15, 2023
P.S. In my view, this "restraint" or minimalist impulse is sometimes good and sometimes bad--depending on the case--but such assessments require engaging with the decisions on the merits, not hiding behind labels like "activist."
— Jonathan H. Adler (@jadler1969) June 15, 2023
As for this term, thus far, this detail doesn't exactly point to an out of control right-wing Court, running roughshod over a powerless minority:
Sotomayor remains the Justice most often in the majority so far this term at 97%. (Though that includes Sackett, which was more like a dissent.)
— Kimberly Robinson (@KimberlyRobinsn) June 16, 2023
Alito the least at 73%.
Kagan, Kavanaugh, Jackson at 95%.
Roberts, Barrett at 92%.
Gorsuch 81%. And Thomas 78%.
These statistics will obviously shift as other major decisions are released over the coming weeks. It's often true that the most controversial cases are announced toward the end of the term. But the fact that the three leftist justices have been in the majority in at least 95 percent of the decisions rendered up to this point undercuts a frivolous and ideologically-driven critique of the Court -- and it also underscores how much consensus exists at SCOTUS, a reality that's often overlooked because many observers ignore everything but the closely-divided, hot-button cases. Of course, even unanimous decisions have been clumsily demagogued by irresponsible partisans:
This MAGA Supreme Court is continuing to erode our country’s environmental laws.
— Chuck Schumer (@SenSchumer) May 25, 2023
Make no mistake—this ruling will mean more polluted water, and more destruction of wetlands.
We’ll keep fighting to protect our waters. https://t.co/wlp1LTvZJB
The 'MAGA Supreme Court' includes Sotomayor, Kagan and Jackson, apparently. How stupid. I'll also note that even after months of relentless attacks against SCOTUS last spring and summer, the Court still enjoyed more public trust than the presidency, the Congress, or the media, the institutions doing the attacking. The most anticipated decisions we are awaiting this term (the Left won a big one on redistricting already) entail religious liberty (two cases, one on workplace accommodations, the other related to LGBT wedding services), Biden's student loan scheme, and race-based affirmative action in college admissions. On that last case, if and when SCOTUS rules that racial discrimination is unconstitutional, it will be wild yet predictable to see "progressives" melt down over that development. Especially considering how very far out of the mainstream they are on this front in the public opinion arena, too. I'll leave you with another example of the Left's Calvinball standards on norms and institutions. The rule is basically, 'we can do whatever we want, but when the other side does certain things that we also do, it's dangerous:'
Delegitimizing courts is bad again. https://t.co/igj1C7ivvk
— Jonathan H. Adler (@jadler1969) June 15, 2023
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