Despite all the fearmongering from leftists and wishful thinking from conservatives, the Supreme Court and its three newest justices continue to prove everyone wrong.
The bench has issued a shocking number of unanimous opinions this term, plus some often surprising majority coalitions. In one of its most recent cases illustrating the latter, for example, “conservative” Justice Brett Kavanaugh joined the court’s leftist Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan and its Chief Appeaser John Roberts to uphold the federal government’s coronavirus-related tenant-eviction moratorium.
In another ruling issued this week, Justice Amy Coney Barrett joined Justices Clarence Thomas, Neil Gorsuch, and Kagan in a dissent regarding a pipeline in New Jersey, deciding whether the federal government has the power to strip states of their sovereign immunity in eminent domain cases. Barrett argued the government does not have that right, while Justices Samuel Alito, Breyer, Sotomayor, Kavanaugh, and Roberts ruled that it does.
A still more surprising opinion last week came from Thomas, the bench’s most reliable conservative, who joined the liberal justices in a dissent to argue against a decision limiting the standing of the majority of people in a high-profile class-action lawsuit.
And on the unanimity front, all nine justice agreed that Philadelphia could not forbid Catholic Social Services from partnering with the city’s foster care program, and that the NCAA’s ban on certain forms of compensation for student-athletes is a violation of antitrust laws. Indeed, of the 65 decisions in the 2020-2021 term, 29 have been unanimous.
All of this goes to show that the court is taking its constitutional responsibility seriously despite partisan efforts to turn it into a political weapon. The justices are having serious debates about serious constitutional issues and finding that their legal agreements and disagreements with each other transcend the public perceptions of their ideological differences. At least one branch of government is capable of avoiding toxic polarization.
Truly, this is Roberts’s dream come true: a nonpartisan court that offers consensus on issues of lesser public note while avoiding many very important issues altogether.
We should be glad the Supreme Court has not become an extension of one political party. But it seems the bench’s efforts to avoid rank partisanship has led it to avoid important political debates altogether. Abortion, transgenderism, leftist racialism: The court has had the chance to take up each of these issues this term but has refused to do so almost every time.
The court might think it is doing the country a favor by avoiding heated cultural debates and keeping the boat steady, but it’s not. These pressing issues have become embedded in our legal system, thanks in large part to the court itself (think: Roe v. Wade), which means the debate over them isn’t going away any time soon.
So, if the court’s new consensus comes at the cost of bold rulings that will help the country navigate the tough debates it’s facing, I wonder: Is it really worth it?
