There’s a scene in The Patriot when the main character enters a tavern, intent on recruiting rebels to battle King George. Unsure whether the gathering of men are loyal to Crown or colony, he shouts: “God save King George!” The barrage of curses reveal he has found the right place.
Today, I expect a similar reaction, were I to extol the Supreme Court among certain gatherings of conservatives or Republicans. Since it’s the case I’m making, however, I might as well further enrage my friends on the Right by declaring that we’re getting the Supreme Court decisions we deserve and will continue to do so until we get back to the hard, neighborly work of democracy.
To understand what I mean, consider some recent SCOTUS decisions that have animated Never Trumpers to mock their GOP enemies with cries of: “But judges!” Bostock v Clayton County, for example, extended discrimination protections to gay and transgendered employees, infuriating many who expected a new conservative majority to rein in our social-justice besotted administrative state. But majority author Neil Gorsuch didn’t base the decision on penumbral fantasies — he faulted Congress for not only passing a vague law that failed to limit what “sex discrimination” means, yet broadened its applicability in 1991. “When Congress,” he wrote, “chooses not to include any exceptions to a broad rule, courts apply the broad rule.”
The message is clear: If you don’t like what the words of your law mean, do your jobs as legislators and fix the words. While conservatives wanted a different outcome, it’s hard to argue that this isn’t conservative jurisprudence attentive to the separated roles of legislators and judges.
Or take DHS v Regents, which blocked an effort to rescind Obama era clemency and employment permission for 700,000 illegal immigrants. Writing for the majority, Chief Justice John Roberts chastised the executive branch for failing to follow procedures created to guard against arbitrary and capricious decisions by federal bureaucrats. DHS was even given a chance to make a stronger case when a district court asked then-Secretary Kirstjen Nielsen to revise the inadequate work of her predecessor. Nielsen, however, elected to stand on the shaky ground bequeathed to her. Reading Roberts’s decision, you can sense his frustration.
This theme of inadequate homework similarly infuses a decision that outraged some on the Right last year, in which the court blocked the return of a citizenship question to the U.S. census after its removal under Obama. Commerce Secretary Wilbur Ross, in the majority’s view, failed to properly follow established procedures, leaving the justices no choice but to throw a flag as the clock for launching the decennial census ran down, effectively scuttling what could have been a significant bolstering of voting integrity.
The texts of these opinions and others suggest something that shouldn’t surprise people who say they don’t want activist judges: A good court won’t exceed its bounds. The judiciary, after all, was designed to be a responsive institution guarding against congressional and executive overreach. Indeed, conservatives indict the Left for repeatedly violating the democratic ideals they espouse by circumventing electorally accountable institutions via judges who force Americans to live by rules we never voted for.
Beyond these higher-profile cases, there’s ample evidence the newly constituted Supreme Court majority is intent on protecting federalism and the rule of law. In this term alone, they upheld separation of powers after Congress created an agency accountable neither to itself nor to the White House. They also upheld the right of states to prosecute crimes by illegal immigrants, and of the Federal government to deport noncitizens when they commit crimes. They rejected an attempt by foreign nationals to use the constitutional rights of U.S. citizens to sue America and told foreign NGO affiliates that they can’t hide behind the First Amendment to avoid being required to oppose sex trafficking as a condition of receiving U.S. funds. And of course, we’ve seen in recent days that the newest members are willing to go against the president who appointed them in order to uphold separation of powers.
Conservatives are understandably upset that Obama era decisions they abhor are not being uniformly struck down. And if the name of the game is simply power, they have good reason to be. If, however, they adhere to a conviction that a federalist balance of power, stable laws, and governance via elected representatives is the proper course for our country, then the answer is clear: Don’t ask judges to do the work that too many members of Congress and the executive branch seem intent on shirking.
Tony Woodlief is executive vice president of the State Policy Network.
