Ryan J. Lanier
The responses from both ends of the political spectrum to the various decisions reached by the Supreme Court this term underscores how dependent our politics have become on the courts to achieve policy goals.
Being a Justice on the Supreme Court must be a miserable job when it comes time to issue opinions. Each year, opinions, dissents, and concurrences are examined and reexamined endlessly by the pundits and politicians seeking to discover the many new ways that each case has changed America forever. With this analysis, they become legal prognosticators, declaring how the decisions will set their favorite movement that day back decades. Things only become worse when retirement rumors come up and the ability of the president to “forever alter the Court” becomes the week’s topic in the 24 hour news cycle. Indeed, the way that our media and elected officials respond to the latest news from the Court is reminiscent of a pack of piranhas attacking fresh meat. This behavior is just a symptom of our nation’s unhealthy reliance on the Supreme Court.
The reliance on the Court to do one’s political bidding is far from a partisan issue. Indeed, in a hyper-partisan environment, one of the few things both sides seem to be able to agree on is that it is the duty of the Supreme Court to validate and promote the policy goals of one political party. Of course, which party should be given this extra support depends on whether your name is followed by a D or an R. Take for example some of the reactions to cases this term. Speaking in response to the Court’s redefinition of sex in Bostock v. Clayton County, Senator Josh Hawley (R-Mo.) decried the ruling as a “truly historic piece of legislation” that “will have effects that range from employment law to sports to churches.” Just a few weeks later, Ian Millhiser wrote in Vox that the Court’s decision in Our Lady of Guadalupe School v. Morrisey-Berru granted religious organizations the power to “immunize themselves from liability and discrimination.”
Of course, the response to these two cases is typical and remains an essential part of what make America so great. This exchange of ideas should be preserved. Reasonable people will disagree, and that is a good thing. The problem arises, however, when we examine the nature of how politicians such as Senator Hawley and writers such as Mr. Millhiser believe we must react. Indeed, these very responses bring to light a broader problem that exists in America and must be resolved, namely the overreliance on the Courts to make policy decisions favorable to one side or the other.
In the case of members of the political right, the response has been to lament the ineffectiveness of the so-called “conservative legal movement.” For example, one only has to look to Adrian Vermeule’s call to go “Beyond Originalism” in order to see how many conservatives believe the judiciary ought to be used to solve the ills social conservatives perceive in American society. Or, in the case of more mainstream conservative thought, one merely needs to examine attempts to overturn the Affordable Care Act through the courts rather than Congress. Additionally, one of the primary reasons many people voted for President Donald Trump in 2016 was his promise to appoint conservative justices to the Supreme Court. Indeed, exit polling from the 2016 election showed that a majority of Trump voters (myself included) saw control of the Supreme Court as the most important reason to vote Trump. Now, in light of recent setbacks at the nation’s highest court, the President has once again turned to Supreme Court appointments to make the case for his reelection. The willingness of voters to back the President due to the Supreme Court in 2016⸻and potentially again this November⸻only serves to underscore the reliance that the American political right has on the Supreme Court to preserve its vision of America.
Turning to the left end of the political spectrum, we see a similar obsession with a different means of accomplishing its goals. Indeed, while pundits on the right condemn the Court’s recent decisions, many on the left maintain that such decisions make radical solutions such as court packing essential. This strategy relies on leading readers to believe that decisions that redefine sex, strike down restrictions on abortion, and hold the President accountable in criminal cases are actually losses for progressives. For example, writing in response to Chief Justice John Roberts’ decision to join the majority decision to uphold a challenge to a Louisiana abortion law in June Medical Services v. Russo, Mr. Millhiser argues that regardless of the adherence to precedent articulated by the Chief Justice, Roberts “is likely to vote to restrict⸻or even eliminate⸻the constitutional right to an abortion.” Similarly, others have argued that Roberts’ decisions have been designed to prevent the court from becoming too political and thus risk the apparent eroding legitimacy of the Supreme Court. For some, this provides even more reason for Former Vice President Joe Biden to give in to demands from the left to restructure the Court and add justices in order to reclaim the seat “stolen” from President Obama by Senate Republicans.
Through judicial appointments, both sides of the political spectrum seek to accomplish the same goal: add justices who agree with them politically to the Court. Once this goal is accomplished, the party in power then finds itself free to use judges to legislate as they wish, whether that is in succeeding where Congress failed in overturning the Affordable Care Act or providing extra protections to LGBTQ+ individuals. Ultimately, these desires come down to an important misunderstanding of what the Court is designed to do and what the Court should do. In the end, calls to appoint more conservative justices or add additional seats are merely the result of our increasing overreliance on the Court to solve our problems.
In his remarks after the release of Bostock, Senator Hawley warned that if judicial philosophies such as textualism and originalism can lay the foundation for such decisions, “then textualism and originalism…don’t mean much at all.” Indeed, his remarks remind us the danger of relying on the “super-legislators” on the Court, who often act with impunity and little regard for what the Constitution actually says. In order to have a truly constitutional government, conservatives must resist the temptation to use the judiciary as a weapon when attempts to change laws fail in Congress. Maybe this means that we shouldn’t pursue the end of the Affordable Care Act through the a legally dubious method of reasoning. Further, this may mean that that we must accept that the president is subject to criminal investigations. If these are the results, then so be it. That is part of the necessity of originalism. The conclusions we reach might not be what we want now, but they provide the legitimacy we need later. As conservatives, we should remain rooted in our principles, rather than sacrificing them for policy gains. Such an adherence to what we claim to believe will keep us grounded in the Constitution and help free us from this unhealthy reliance on the courts to fill our desires.
About the Author
Ryan Lanier is the Editor-in-Chief of American Discourse.