Newsweek: Today’s Supreme Court Is Anything But Conservative
Newsweek
Today’s Supreme Court Is Anything But Conservative
Thomas Moukawsher
Published Aug 05, 2024 at 12:03 PM EDT
Little noticed amid the sturm und drang of recent weeks, is the 2024 Republican Party Platform. Most platforms are a buffet of bluster anyway, but this year we should worry that Republicans mean what they say, or, with respect to the courts, what their platform doesn’t say.
The Republicans didn’t adopt a platform in 2020, but prior to 2024 every platform Republicans adopted for 28 years—2016, 2012, 2008, 2004, 2000, and 1996 denounced “judicial activism”—judges who allow their personal politics to interfere with their duties on the bench. This year, Republicans dropped all criticism of activist courts. Indeed, rather than attacking judges, the 2024 platform’s sole mention of the judiciary is a vow to prevent Democrats from altering the Supreme Court.
So, now we know for sure that past Republican calls for a neutral judiciary merely masked a desire for a shift in judicial philosophy. What they really wanted, and got, was a shift past neutral and into reverse.
Not since the courts turned left following the New Deal era has there been such a series of seismic, politically identifiable, rulings. In the wake of former President Donald Trump‘s Supreme Court appointments, the Court has narrowed the separation of church and state, ended affirmative action, ended constitutional abortion rights, assaulted regulatory agencies, expanded gun rights, insulated crime-committing presidents from prosecution, undercut EPA efforts with greenhouse gas emissions, gutted the 14th Amendment protection against insurrectionists in office, encouraged extreme gerrymandering, dropped charges against Jan. 6 insurrectionists, and greenlighted crack downs on the homeless.
Even those who agree with some of these decisions should at least admit this isn’t an old-fashioned, wary of change, incremental, stability-loving “conservative” court. The justices aren’t like umpires, “calling balls and strikes” as Chief Justice John Roberts once described them. Because, if they are, the umpires just picked up bats and started beating the members of one team over the head with them. The pretense of neutrality is gone. That’s why the Republicans, after over a quarter of a century, dropped judicial activism from the list of complaints in their platform.
And, no, the Supreme Court isn’t merely reversing the excesses of past liberal-dominated courts. Several cases illustrate this, particularly those dealing with the presidency. The Supreme Court has never ruled before on whether an insurrectionist could serve as president of the United States. Until now, no Supreme Court had ruled on whether crime-committing presidents could be prosecuted. The same is true in other areas. No earlier Supreme Court decisions addressed whether insurrectionists could be prosecuted for obstruction. In weakening federal environmental protections, the court overruled no precedent, nor did it when it decided to weaken protections against racial gerrymandering. Even with respect to Second Amendment rights, the Court’s rightward turn only required it to distinguish a couple of its earlier decisions. It overruled none. Only the court decisions to overturn Roe v. Wade and end judicial deference to agency views about the law, meet the test of the Court undoing errors it perceived in earlier jurisprudence.
So, even if it delights some of us, we should talk about it honestly: the United States Supreme Court is more activist than ever. It has just turned to the right.
And Judge Aileen Cannon is already showing right-wing judges how to keep turning in that direction. Cannon dismissed the Florida secret documents case against Trump because in her view Special Counsel Jack Smith wasn’t properly appointed. Cannon’s ruling relied on a subjective, Trump-friendly opinion that the job was too important to appoint under the authority invoked by the attorney general. Cannon was so concerned about this that she chose to ignore the case of United States v. Nixon in which the Supreme Court said the exact opposite of what she said. If Cannon’s ruling is upheld by the Supreme Court, more courts will take turns ignoring other rulings and flouting the plain language of statutes—ending the textualism once highly praised by conservative judges.
Most worrying of all is whether the country’s new activists on the bench will interfere with the right of the people to choose their own president. Shortly after President Joe Biden pulled out of the race, House Speaker Mike Johnson announced that Republicans would challenge the Democrats in court if they tried to replace Biden on the ballot with Vice President Kamala Harris. The challenges don’t appear likely to succeed, but they illustrate a new reality in Republican politics: sue first and ask questions later.
