Supreme Modesty

By Charles C. W. Cooke

Thursday, July 13, 2023

 

I write to praise our modest Supreme Court.

 

Does that word surprise you? “Modest.” Does it seem glib, provocative — ungrateful, even? Do I sound defensive in the wake of a series of decisions that I liked? This Supreme Court, after all, is supposed to be unconscionably radical. Per President Biden, the current justices are not “normal.” Per Elizabeth Warren, their rulings are “extremist.” Gavin Newsom, the governor of California, has gone so far as to submit that “right-wing activists — including those donning robes — are trying to take us back to the era of book bans and segregated campuses.” And here I am calling its recent judicial record “modest.” What manner of gaslighting can this be?

 

Nevertheless, I shall persist in my characterization: This Court is “modest.”

 

I am not, of course, suggesting that the Court is declining to take up matters of great controversy or import. In the last two years, it has reversed Roe v. Wade, struck down affirmative action, nixed a host of President Biden’s ultra vires executive actions, robustly upheld the protections of the First Amendment, and put meat on the constitutional right to keep and bear arms with a vehemence that the majority in D.C. v. Heller conspicuously avoided. Rather, I am proposing that the Court has declined to innovate in the manner that its forerunners did for eight decades straight, and that, in so doing, it has returned itself to its proper role within our constitutional order: one of faithful, originalist propriety. Or, you might say: “modest.”

 

When defending their political project, conservatives are fond of pointing to the triumph of the originalist judicial philosophy as one of the great achievements of the last half century. But that victory has not been without its critics. Some of those critics, such as Senator Josh Hawley of Missouri, have practical problems with the originalist approach, believing it to be too far removed from the aims of the Republican Party to serve as a sufficient counterweight against the partisan “living constitutionalism” of the institutional Left. Others, such as Hadley Arkes, believe that the formal legal neutrality that informs the dominant strain of originalism can render it morally bankrupt on imperative questions such as identity politics and abortion. Yet more, like Harvard’s Adrian Vermeule, have deep philosophical objections to originalism — such as that it is unlikely to aid him in his project to turn the United States into a 13th-century Catholic monarchy.

 

If one were to take the Court’s left-wing critics at face value, one could be forgiven for concluding that, since its new 6–3 majority was secured in 2020, the Court had begun to heed these cavillous voices and to reinvent America according to their terms. But, of course, it has done no such thing. Instead, the Court’s new majority has ignored those voices in favor of practicing what its members have preached. In a recent op-ed in the Washington Post, the architect of the new Court, Senator Mitch McConnell of Kentucky, observed that “the proper role of the court is ideologically unpredictable.” And so has this one been. It is not partisan. It is not activist. It is not crazy. It is restrained, straightforward, and inobtrusive — in all the best ways. It is what a Supreme Court should be.

 

For evidence of this, one must look to the notable absence of decisions that are unmoored from the text. As Jonathan Adler likes to point out, even in its new configuration, the Roberts Court is still overturning precedents at a slower pace than its predecessors. But just as important is that the new Roberts Court is refusing to invent new lies. Thus far, we have seen no decisions that resemble the extrajudicial abominations that were Roe v. Wade or Obergefell v. Hodges or Griggs v. Duke Power. Thus far, we have seen none of the cavalier concoctions of the Warren years, or the brazen politicking of the Burger Court, or the preposterous mysticism and armchair philosophizing that was so beloved of the Anthony Kennedys and David Souters of the world. Thus far, we have seen no appeals to “one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Instead, the new Court has limited its role to undoing the most egregious mistakes of the past, to preventing the president from rewriting the terms of long-standing statutes to suit the political imperatives of the moment, and to enforcing those provisions of the Constitution whose meaning is plain. When, by contrast, the Court has been asked to invent a new doctrine atop a piece of unclear text (as it was in Moore v. Harper), or to use a weak case to advance a conservative priority (as it was in California v. Texas, the most recent Obamacare case), or to interpret a hotly debated statute to the benefit of one side (as it was in Allen v. Milligan), or to help the Republican Party explicitly (as Donald Trump demanded in 2021), it has refused.

 

William F. Buckley Jr. once observed that not all the things that superficially resemble one another are, in fact, alike. Resisting the claim that American action in Grenada was equivalent to the Soviet invasion of Afghanistan, Buckley retorted: “That is like saying that the man who pushes a little old lady into the path of a bus is morally equivalent to the man who pushes her out of its path, because they both push little old ladies around.” So it is with Supreme Court decisions that reverse the worst mistakes of the past. Roe v. Wade, which turned abortion into a constitutional right, was a controversial decision. So was Dobb  v. Jackson Women’s Health Organization, which overturned it. But that does not make them equally activist or equally poorly reasoned or equally imperial in nature. The chastened thief who elects to return goods that he has stolen is to be praised for his volte-face, not lambasted on the technicality that, in the process of his turnabout, he is still handling his loot. Much of the Supreme Court’s work over the last couple of years has involved the correction of its prior errors.

 

In Dobbs, it overturned Roe and, in so doing, dramatically reduced its own power over one of the most hotly fought questions in American politics. In Carson v. Makin and Kennedy v. Bremerton, it rescued the free-exercise clause and establishment clause from decades of nonsensical corrosion. In Espinoza v. Montana Department of Revenue, it finally drew a line under its disgraceful indulgence of the Blaine amendments. In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, it refused to continue to do what it had done for more than four decades — namely, to contend that affirmative action was unconstitutional and then to find a weak excuse to ignore that conviction — and followed its reasoning to its logical conclusion. If, in the coming years, the Court overturns Chevron v. NRDC or Pike v. Bruce Church or Employment Division v. Smith, it will continue down this restorative path.

 

The Court’s statutory cases have also been restorative, insofar as they have served to protect the core of the American constitutional order: the separation of powers. In both West Virginia v. EPA (a case prompted by the Biden administration’s attempt to regulate carbon dioxide emissions without congressional authority) and Biden v. Nebraska (a case provoked by President Biden’s attempt to spend $400 billion of taxpayers’ money on student-loan “relief” without the consent of the legislature), the resolved question was not whether the president’s preferences were admirable, but whether the law as written provided for them. Writing for the majority in Biden v. Nebraska, Chief Justice Roberts made this abundantly clear: “The question here is not whether something should be done,” he confirmed; “it is who has the authority to do it.” In her dissents in both cases, Justice Elena Kagan accused the majorities of judicial imperialism. “The Court appoints itself — instead of Congress or the expert agency — the decision maker,” Kagan wrote in West Virginia v. EPA. In Biden v. Nebraska, Kagan went one further, alleging that the Court’s opinion “exercises authority it does not have.” But this is absurd. In neither of those cases did the Court take ownership of the policy area (“appoint itself”), conclude that the “experts” were wrong on the regulatory merits, or offer an opinion as to the wisdom of the actions per se. Rather, the Court “exercised” an “authority” that it indisputably has: to mediate, on textualist grounds, the statutory disputes that arise between the other two branches of government. That, in both cases, the Court sided against the executive branch underscores the point. Properly understood, it is the height of judicial modesty to insist that, unless otherwise clearly prohibited from doing so by the Constitution (the First Amendment, remember, begins with “Congress shall make no law”), the lawmaking branch must be the one that makes the law.

 

Which brings us to the third category of decisions: enforcing those provisions of the Constitution whose meaning is plain. Intrinsically, this responsibility is less modest than the others, as it often involves an unelected branch of government (the Supreme Court) destroying the actions of the elected branches (Congress, the states, the president). Nevertheless, there is a modest way for the courts to do this and an immodest way for the courts to do it, and, thus far, this Court has stayed firmly on the modest side. Contrary to the superficial analyses one might read in the press, that modesty is not determined by the ferociousness with which the Court upholds the law, or by the popularity of its decisions, or by the nature of the parties that have come before it, but by whether the Court is sticking to the law as it was originally understood. In essence, originalism is a theory of legitimacy. The Constitution was ratified by a majority, and its terms are binding on other majorities until such time as it is amended by another majority. When the Court applies the Constitution-as-written, it is upholding the will of one majority over another. When the Court invents constitutional terms from nothing — or bends the existing ones to its own preferences — it is preferring its own will to that of both competing majorities (the one that ratified the Constitution and the one that passed the laws whose constitutionality it is striking down).

 

During the last two terms, the new Roberts Court has stayed closely within the Constitution’s confines. At no point did the Court use malleable and extratextual concepts such as “substantive due process” to interfere with the political process. At no point did it range into the avant-garde. Instead, it stuck to Articles I, II, and III; to the equal-protection clause of the 14th Amendment; and to the Bill of Rights. In 303 Creative, the Court ruled that the free-speech clause of the First Amendment prohibits forced speech. In Kennedy v. Bremerton, the Court ruled that the establishment clause of the First Amendment did not prohibit a football coach at a public high school from leading a voluntary prayer before games. In Carson v. Makin, the Court ruled that the free-exercise clause of the First Amendment prohibits governments from excluding religious schools from generally applicable state tuition programs. In Shurtleff v. Boston, the Court ruled that the First Amendment does not allow cities and states to engage in viewpoint discrimination in an ostensibly open forum. In Houston Community College System v. Wilson, the Court ruled that elected bodies may censure their members without violating the First Amendment. In New York State Rifle & Pistol Association v. Bruen, the Court ruled that the Second Amendment does not permit the states to use subjective criteria such as a “special need” when determining which eligible applicants may receive concealed-carry permits. And on, and on, and on — you get the picture. In this Court, the controversies are clear, the decisions are clear, the parts of the Constitution that are at stake are clear, and usually — absent some confounding factor unrelated to the core inquiry — the opinions are comprehensible by the layman.

 

It is a matter of considerable irony that the calls for “reforming” the Court have reached their fever pitch at the exact same moment that the Court has begun to sedulously execute its role. In the three maelstroms of 2017, 2018, and 2020 — in which years Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were nominated and appointed to the body — we were informed by the loudest of the carpers that we would soon be treated to a period of unchecked arrogance and unmoored deviations from the norm. Instead, the new additions have ushered in a majority that has achieved what many of us had come to believe was a pipe dream: They have saved the Supreme Court from itself.