Progressives claim recent conservative victories in the Supreme Court show that it has been overpoliticized — and therefore made illegitimate.
“People on the losing end of Supreme Court decisions increasingly feel that justice is not being served,” Peter Coy wrote Monday for the New York Times. “That’s a scary situation for the high court, and for American democracy in general.”
Some have gone as far as renewing calls to expand the court, hoping to rein in what Guardian writer David Daley calls a “runaway rightwing court — unbound by precedent, public opinion or history, one willing to create over two days a new American hellscape of uncontrollable concealed carry and forced pregnancies.”
Activists and members of the legacy media are not alone in worrying about the court’s legitimacy. The argument was made by Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan in the Dobbs v. Jackson Women’s Health Organization dissenting opinion. In it, they wrote that the majority “undermines the Court’s legitimacy” by ignoring precedent, a consequence the court “worked hard to avert” in Planned Parenthood v. Casey.
Conservatives have certainly been pleased (actually, downright thrilled) with recent decisions such as Carson v. Makin and Kennedy v. Bremerton School District, two wins for religious liberty; New York State Rifle & Pistol Assn., Inc. v. Bruen, a Second Amendment win; and most importantly with Dobbs v. Jackson Women’s Health Organization. Is this because the court has become too partisan? Does this mean the court is bent on turning the United States into a “theocracy,” as many progressives fear?
Public opinion or outcry is not the standard for determining the legitimacy of the court despite what protesters have attempted to accomplish through intimidating justices since the Dobbs leak. The right application of constitutional law is the standard.
Conservatives, happy to see the coach win his case in Kennedy v. Bremerton School District, are also happy to see those of other beliefs protected in living out their faith. Why? Religious liberty protects everyone equally. In fact, the families who brought the suit in Carson v. Makin to use Maine’s tuition assistance program at Christian schools were supported in amicus briefs by Jewish and Islamic groups. The verdict applies broadly to all religious schools.
Likewise, while Dobbs was a monumental pro-life victory, it was equally a victory for the role of the judiciary. The Supreme Court suffered a blow to its legitimacy in 1973 when it overruled the laws in 46 states that regulated abortion pre-Roe, usurping the power of state legislatures on an issue they rightly had the responsibility to manage.
This “conservative” win is one the Left should be celebrating too. As Alliance Defending Freedom President Michael Farris wrote for Newsweek, “It is rare to see any governmental entity limit its own power.” That makes it, he writes, “a marvel worth celebrating.”
Justice Clarence Thomas put it best in his opinion: “That 50 years have passed since Roe and abortion advocates still cannot coherently articulate the right (or rights) at stake proves the obvious: The right to abortion is ultimately a policy goal in desperate search of a constitutional justification.”
States maintain the ability to legalize abortion after the overturn of Roe. But the Left is so intent on defending a nonexistent constitutional right that they cannot see the bigger victory benefiting all sides: the court stepping back from an attempt to legislate. The court, rather than grabbing power, is giving it back to the people, allowing them to make their own decisions. So much for being pro-choice.
Katelynn Richardson is a summer 2022 Washington Examiner fellow.
