The Supreme Court As Culture Warrior
Conservatives said they wanted a doctrinal revolution. But the Justices they appointed seem more interested in owning the libs
There’s a story, oft told, about the current Supreme Court and how it came to have a conservative majority. And that is, that there was a legal movement, formed in resistance to desegregation and other liberal rulings of the 1950’s and 1960’s, nurtured by conservative professors, and jump-started by the Federalist Society, whose goal was to overturn decades of liberal precedent and plant the seeds of conservative domination of government through the judicial branch. Now, with six of the nine Justices on the Court, conservatives will finally achieve those cherished goals.
And they might. But what they seem to have gotten is something else entirely. It is obviously not the case that the conservative Supreme Court majority never rolls back precedents- they clearly do, and seem poised to overturn Roe v. Wade this term. And it’s also not the case that they haven’t advanced their legal theories- you can see that even in the cases that liberals have won, such as the Bostock case endorsing gay and trans rights; the reasoning in the case, while used to achieve a liberal end, is classic conservative reasoning about the text of the Civil Rights Act, rather than a ringing endorsement of the equal dignity of LGBT people.
But there’s been a lot less of that than you might expect. Most of the major legal doctrines that were in place a few decades ago are still in place. The Fourth Amendment exclusionary rule still keeps evidence out of criminal cases, police still read you your Miranda rights when they interrogate you, and you can still freely buy contraceptives and pornography. And the basic structural changes that right wing legal scholars have called for- things like restricting the reach of Congress’ interstate commerce power, or declaring administrative agencies unconstitutional- are not anywhere close to fruition.
So what has the Court been doing instead? Involving itself, with extraordinary frequency, with the hot-button topics of political discussion, especially on the right. Call it the Fox News court.
Let’s look at some of the things the Supreme Court has done in recent times:
Decided a whole bunch of cases, on the shadow docket and without full briefing or argument, on whether municipalities’ COVID shutdown orders can apply to churches with various configurations.
Issued orders striking down emergency decisions of election officials to modify rules to ensure people could vote without getting COVID.
Devoted an unprecedented four hours of oral argument to the question of whether interim stay orders should be issued on the question of whether the authorizing statutes for OSHA and Medicare contain language that permits the Biden administration to impose vaccine mandates.
This hardly seems like the type of stuff that would fuel a legal revolution. Indeed, all of these things are good examples of the sort of issues the Supreme Court used to stay out of. Seriously, back in the day, the “shadow docket” (decisions without full briefing or argument) was limited basically to life and death issues like death penalty stays (and even those were rarely granted). The Supreme Court took cases of national importance, where there were conflicts in the decisions of different Courts of Appeals and the Supreme Court needed to settle the issue. The Court now takes far less of those “merits” cases than it used to: that number is generally now in the 70’s, whereas 40 years ago it was over 100 a year.
Instead, the Supreme Court likes to involve itself in issues that arise out of the political zeitgeist. This may have started with Bush v. Gore. There was a strong argument that the result of a presidential election was a classic “political question”, to be handled by state legislatures and Congress, not the Court. But all nine Justices jumped in almost as soon as they were asked to. It was being debated endlessly on television, so they just had to be a part of it.
But it has continued from there. Nowadays the Court makes much of its news not from deciding traditional cases resolving circuit splits, but by jumping in to decide hot button political issues (many of which right now revolve around COVID policies, with their huge culture war elements).
And the important thing about this trend is that these sorts of hot button decisions are unlikely to make lasting legal change or to theoretically advance conservative jurisprudence. Take the OSHA mandate case. It’s the central point of discussion of legal journalists and commentators on the Internet right now. It’s also a total one-off. There’s not likely to be another situation where OSHA imposes a vaccine mandate, at least any time in the near future, so whether the OSHA statute authorizes this particular mandate is a decision that will affect this one case only. It’s sort of like Bush v. Gore’s famous “one ride only” footnote, where the Court said its analysis wouldn’t apply in other cases, only here the Court won’t even have to say it. By definition, its reasoning will have very limited application outside this specific context.
And notably, this is exactly how the Court, including its conservative members, want it. The District Court and 5th Circuit issued opinions in the vaccine mandate cases containing broad rulings that the federal government literally had no power at all to prevent communicable disease; judging by the oral arguments heard by SCOTUS, they aren’t even considering those arguments, which, if accepted, really would remake the law and strip the federal government of a lot of its power. (Notably, a lot of legal commentators who purport to be Supreme Court experts reported on the oral arguments as if the Court were considering to do that, calling the OSHA case the death knell for the administrative state. Those takes were either deeply misinformed or deeply misleading.)
Similarly, the Court has issued a bunch of shadow docket orders on churches and COVID, which imply that the Court will interpret religious freedom rights more broadly as a check on government action, but they haven’t announced it as an actual legal rule in a merits case.
Indeed, this is consistent with what we have been seeing from the Court’s conservatives for years. For instance, take NFIB v. Sibelius, the famous Obamacare case. In that case, they could have adopted an interpretation of the Commerce Clause that stripped the federal government of the power to regulate the economy, something conservatives have been trying to achieve for years. But they didn’t. Even though the Court found that Obamacare’s individual insurance mandate violated the Commerce Clause, they did not overturn any of the key commerce cases but instead applied a rationale unique to the individual mandate, saying that it regulated “economic inactivity” and that every other commerce case involved “economic activity” instead and was not affected. Further, they upheld the mandate under the tax power anyway. So the federal government came out of the case with all of its powers intact.
Or consider Gundy v. United States, which involved a “nondelegation” challenge to a decision by a Justice Department official to authorize the imprisonment of sex offenders beyond their sentences, even though Congress considered expressly extending terms of imprisonment and decided not to do so. Expanding “nondelegation” is a huge conservative goal, because if Congress can’t delegate its powers, perhaps much of the administrative state conservatives hate would be unconstitutional.
And importantly, Gundy was the absolute perfect case to start that rollback. Legal strategies always start with the easiest cases. Before Roe, the Court first found a right of married couples to use contraception (Griswold v. Connecticut) and then extended it to single women (Eisenstadt v. Baird). Before desegregating elementary schools (Brown v. Board of Education), the Court desegregated law schools (Missouri ex rel. Gaines v. Canada). And before Miranda, the Court first held that there was a right to appointed counsel in state court proceedings (Gideon v. Wainwright), and then imposed some limits on stationhouse interrogations that fell short of the Miranda protection (Escobedo v. Illinois).
So in Gundy, you had an absolutely egregious case: this bureaucrat was basically permitted to impose life prison sentences on people who had been scheduled to be released, even though Congress punted on the exact same issue. If ever there was a good candidate to apply the nondelegation doctrine, this was it. And yet, the Supreme Court ruled for the government. Advancing a conservative legal revolution was simply not that attractive to the Court; but when the opportunity came to own the libs on the COVID cases that were captivating the Fox News audience, the Court jumped at the chance.
I make no predictions about the future here. Obviously, a six justice majority can do a lot of things, and perhaps as cases come up to the Court, they will move legal theory and doctrine decisively to the right. But perhaps not: perhaps the Justices, like everyone else, are now plugged into the debates on social media, and listen to talk radio and watch ideological cable news. Perhaps they think that delivering Republicans victories in hot button politically charged cases is precisely the judicial revolution that they wish to foment.