THE CONSERVATIVE SUPREME COURT HAS TRANSFORMED AMERICA

The Conservative Supreme Court has been on my radar for some time. A recent commentary on the subject by Dave Ball, published in this paper on July 9, 2023, helped to solidify my thoughts. This rebuttal of Mr. Ball will also serve as an overview of the consequential effects of Chief Justice John Roberts’s Conservative Supreme Court on American society.

First, Mr. Ball argues that our highest court “follows the law” and that those “liberals” that disagree with its opinions are “acting like children” because the public policy that flows from the decisions is “not what they wish for.”  His conclusion ignores the fact that many well-respected constitutional scholars argue that the Supreme Court majority often did not follow established precedents or legal theories in deciding recent cases.

Second, our founders created the Supreme Court because Constitutional law is open to numerous interpretations. To characterize Supreme Court controversies, as does Mr. Ball, as a debate between a higher standard of “the law” on the one hand and petty “policy” favorable to an actor’s political views on the other is an argument with little meaning.

Every monumental Supreme Court decision has winners and losers on different sides of the political spectrum. The winners, whether from the left or right, always claim good law and improved policy.  Conversely, the losers claim bad law and worse policy. As an example, the positions of both pro-choice and pro-life advocates remain widely held, sincere, and politically important regardless of the status of the constitutional law on abortion.

Third, I will rebut Mr. Ball’s support for two recent Supreme Court decisions and his attack on court watchers who disagree. In the opinion striking down affirmative action programs in college admissions, (Fair Admissions v. Harvard College) the dissent argues that the decision improperly rolls back decades of precedent and progress on diversity. Constitutional scholars also criticize the conservative majority for adopting “a superficial rule of colorblindness as a constitutional principle.”

Those conservatives praising the new decision on affirmative action should remember that not long ago, one of their own, Justice Sandra Day O’Connor disagreed. She wrote, “Student body diversity is a compelling state interest that can justify the use of race in university admissions.”

Mr. Ball also attacks President Biden for his “vote-buying plan” to cancel up to $400 billion in student loans to benefit as many as 43 million Americans. In fact, this executive action was taken to fulfill a campaign pledge made by Biden to those with student loans during the 2020 election campaign. The President reasoned that if corporations and businesses across the nation could receive over $760 billion in forgiveness loans during the pandemic, students deserved similar forgiveness of their tuition debt.

The conservative Supreme Court ruled that Biden overstepped his authority and vacated the executive order on student loans (Biden v. Nebraska.) There were cogent arguments on both sides of the issue, and no one was shocked by this decision. However, for Mr. Ball to accuse Supreme Court Justice Elena Kagan of showing no legal skill in writing her dissent is ridiculous.

Even worse was Ball’s accusation that any attempt by the President to continue to seek a solution to the student debt crisis would be a “conspiracy to defraud the United States.” Ironically, such a solution was announced last week when Biden’s administration implemented a series of fixes to the student loan repayment system that is expected to help more than 800,000 people with student debt.

In order to understand how the era of Chief Justice John Roberts has transformed America, one must step back for a broader view. Eighteen years ago, the Roberts era began. His goals were to overturn Roe v. Wade, reinterpret the Second Amendment to make private gun ownership a constitutional right, eliminate race-based affirmative action, elevate the place of religion in the public square, and curb federal agencies’ regulatory power. Every objective was achieved by the end of the Supreme Court’s most recent term on June 30.

What can be done to counter this trend and return the Supreme Court to a more moderate center? Various ideas have been proposed starting with expanding the court. The Supreme Court has had as few as five seats and as many as ten. However, if Democrats seek to increase the number of liberal Justices by voting to increase appointments, Republicans could retaliate with the same tactic. 

Congress could create an 18-year term limit for new appointments.  Each President would eventually appoint two Justices during a four-year administration.  Congress could mandate an independent bipartisan commission to nominate fair-minded candidates for the Supreme Court.  Any reform would require action from a deeply divided Congress.

The conservative members of the court are young and will be deciding controversial appeals for decades. Powerful conservative movements will continue to seek cases with favorable fact patterns to present to the activist majority. The goal is to further ingrain white, Christian orthodoxy into constitutional law. For progressives and many moderate court watchers, this conclusion is as unavoidable as it is frightening. 

Concerned citizens do not need Dave Ball or others to rub salt in their wounds by accusing them of acting immaturely when they disagree with the decisions of the conservative court. The mission is now to develop legal “workarounds”, as Biden took last week on student debt, to sidestep the latest rulings. Our democratic constitutional republic expects nothing less.