If you get your legal news from social media, with occasional links to reporting by actual media outlets, you’d think the Supreme Court has made an extreme turn to the Right in the law. In this reading, rulings on cases involving school funding, prayer at schools, guns, and, of course, abortion, represent an ideological hijacking of our Constitution. What’s more, since the six justices in the majority of each of these cases were appointed by Republican presidents, these radical decisions were all just partisanship disguised as law. Or so the argument goes.
That take, which one unfortunately sees not just from Twitter trolls and Facebook lawyers but from highly regarded law professors and journalists in all the top print and broadcast media, is disingenuous at best. To use the technical legal term, it’s hogwash.
I don’t mean that reasonable people, legally trained or otherwise, can’t disagree on these cases, or that anyone who contradicts my analysis is stupid or politically motivated. To the contrary, it’s those attacking the Supreme Court’s legitimacy and calling the justices partisan hacks who seem to believe that the only way to reach the results we’ve seen is to act in bad faith for political reasons.
That sort of attitude isn’t healthy for our republic, particularly at a time when institutional trust is already low and political tribalism increasingly prevents either side from accepting electoral outcomes.
Although I don’t have any magic fixes for our national discord, there’s a way to understand what’s going on at the court as a very deep and serious legal dispute that nevertheless easily fits within the parameters of the rule of law. All one has to do is take at face value the originalism and textualism — and related jurisprudence based on the Constitution’s text, structure, and history — that the court’s majority applies. It’s perfectly fine to disagree with that methodology or its application, but there’s no more evidence that Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett are results-oriented than that Justices Stephen Breyer, Sonia Sotomayor, or Elena Kagan are.
To be sure, some on the Right accuse the latter three of acting on their policy preferences, but there’s no reason to question their good faith either. They simply have a different way of looking at the law, especially in politically sensitive cases with ideological salience. Perhaps many of the court’s critics who align with the liberal justices think that all jurists are results-oriented and vote their values — which is illegitimate when those values point in a conservative direction. I’m not versed enough in psychology to know if that kind of “projection” is at play, but it’s really no way to run a popsicle stand.
In no honest, sane world are the legal rules announced in recent big cases radical:
- States don’t have to allow parents to use school funding on the educational program of their choice— but if they do, they can’t discriminate against religious schools (Carson v. Makin).
- The right to keep and bear arms includes the right to bear arms without having to jump through arbitrary and effectively impossible hoops (New York State Rifle & Pistol Association v. Bruen).
- Courts aren’t well-positioned to decide when life begins or when rights attach (Dobbs v. Jackson Women’s Health Organization).
- Personal prayer at public school events doesn’t constitute the state establishment of religion (Kennedy v. Bremerton School District).
People (and lawyers) can debate all these points in good faith, but there’s simply nothing extreme about them. The policy consequences may or may not be significant, but that’s not the constitutional question. And with abortion, the issue that’s gotten the most attention, it’s healthier for us to fight democratically. That’s what most countries have done — Europe generally settled on restrictions after 12 or 14 weeks, which is more conservative than the Mississippi law that the Supreme Court upheld — and what would’ve happened in the United States had Roe v. Wade not short-circuited that process nearly 50 years ago.
As the Wall Street Journal put it, “The fury of the Left’s reaction isn’t merely about guns and abortion. It reflects their grief at having lost the court as the vehicle for achieving policy goals they can’t get through legislatures.” It’s an understandable impulse, but not one that fairly impugns the highest court in the land.
Ilya Shapiro is the incoming director of constitutional studies at the Manhattan Institute and the author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court, (out in paperback next week), as well as the author of the Shapiro’s Gavel Substack.
