By Jonah Goldberg
Friday, May 15, 2026
As a rule, it’s not good practice to try to take a bone
away from a dog. My own canines are good girls, but when she was younger even
Zoë could get a little snappy if I tried to get something tasty out of her
mouth before she was done with it. Even so, her preferred response was to
either swallow it whole (chipmunks, voles, etc.) or run away and bury it in the
hope she’d be able to return to it later.
With full apprehension and appreciation of the problems
with this analogy, I confess to having a similar trepidation about discussing
the Supreme Court when Sarah Isgur, author of the wonderful New York Times
bestseller Last Branch Standing, host of Advisory Opinions,
and SCOTUSblog pooh-bah is in literal or figurative biting range. Simply
put, despite her being a dear friend and colleague, I am a little scared of
her.
I really can’t afford to lose my hands—they are very
useful for typing—so hopefully I won’t end up hunting-and-pecking the keys with
hooks. But I’m going to intrude on her territory all the same.
Yesterday, the Supreme Court sided with manufacturers of
mifepristone, blocking a lower court stay on the distribution of the abortion
drug that the Biden administration had made easier to get, while a lawsuit
proceeds. Justices Samuel Alito and Clarence Thomas dissented separately. I’m
not some fancy lawyer, but regardless of the politics or policy considerations,
I think they made good points. Still, my opinion is largely irrelevant.
As Dan McLaughlin explains over at National Review, the Trump
administration basically took a dive on the case because it didn’t want to add
to the political headwinds blowing against Republicans in the midterms. The
Food and Drug Administration didn’t even take a position in the case, even
though it had previously conceded that the Biden rule was not properly crafted.
We should pause here to remind people that one of the
lasting legacies of the Trumpian captivity of the Republican Party is that he
has made the GOP a pro-choice party. It’s less pro-choice than the Democrats,
but he has demonstrably moved the party leftward on the issue. This gets lost
in all of the handwringing over the Dobbs decision, which overturned Roe
v. Wade. But in the wake of Dobbs, Trump has come out against both
outright state and federal bans as well as looser restrictions. In 2024, he
publicly announced he opposed a Florida ban on abortions after six weeks of
pregnancy. “I’m going to be voting that we need more than six weeks,” he told NBC.
Trump’s reasoning back then is the same now: He thinks a
hard anti-abortion stance is bad politics for him. That’s why the
administration punted on taking a side on the mifepristone case, refusing to
file a brief (a move that activists on both sides saw as “implicit endorsement
of the appellate ruling,” according to the Associated Press). Louisiana wanted to restrict access to
abortion drugs via mail and telehealth. The Trump administration wants to say
that abortion is a states’ rights issue, but doesn’t want to endorse
state-based restrictions on abortion, certainly not ahead of the midterms. Nor
does it want people to know that abortions have increased since Dobbs.
Going by many conversations I’ve had with people of
various ideological stripes, if this shocks you, I think you might watch too
much MS NOW or too much Fox News. That’s because there’s a weird consensus
among rabidly pro- and rabidly anti-Trump partisans to pretend this isn’t true.
Or at least it’s not an important enough fact to get in the way of very
comfortable partisan narratives on the left and right. The partisan left
doesn’t want to stop talking about A Handmaid’s Tale, and the partisan
right doesn’t want to give up on accusing Democrats of being the abortion
party. This is the kind of misperception that results when politicians and
partisan pundits only talk to their own side.
But those aren’t the partisan narratives I want to focus
on.
The inkless rubber stamp.
It is something close to an article of faith among a
certain strata of progressives that the Republican appointees on the court are
“rubber stamps” for Trump, particularly Justices Thomas and Alito.
“Thomas and Alito appear automatic in their support for
Trump,” Ruth Marcus wrote last year at the Washington Post.
Vox’s Ian Millhiser routinely parrots this line.
He repeatedly describes Alito as “the Court’s most reliable partisan for
Republican Party causes” or “the Court’s most reliable Republican partisan.”
Speaking of reliability, The Daily Beast can be counted on to push this
storyline. In a piece, “Why This Supreme Court Justice Won’t Say No to Trump,”
Annabella Rosciglione writes that the “MAGA-friendly” justice is “seemingly
unwilling to defy President Donald Trump.”
Jay Willis at Balls and Strikes takes swipes at Sarah Isgur to
debunk the “myth” that the majority is anything but a Trump rubber stamp.
Clarence Thomas, Samuel Alito, and Neil Gorsuch are “three Republican-appointed
reactionaries eager to reshape American society in the graven image of Roger
Ailes.”
(Gorsuch? I knew Roger Ailes. I missed it when he
demanded that we give half of Oklahoma back to the Indians.)
In another piece, Willis describes Alito as the “Court’s most
unabashed partisan,” but he does this to underscore how Thomas is even more of
a hack, because even Alito didn’t sign on to Thomas’ presidential
immunity decision concurrence. “Again, Thomas wrote only for himself. Not a
single justice—not even Sam Alito, the Court’s most unabashed partisan—elected
to join him.”
This pas de deux is a common rhetorical dance move. When
a Trump-appointed justice doesn’t fit the narrative, it’s proof of how an even
more stridently anti-Trump or anti-Thomas (or Alito or Brett Kavanaugh, etc.)
thesis must be true.
The key to making this stuff work can best be explained
with an Irish saying, “Hunger is the best sauce.” The idea being that if you’re
starving, almost anything—even Irish food (I kid, I kid)—will taste delicious.
If you’re hungry enough for anti-conservative or anti-Trump fare, you’ll
overlook the fact that the dish is under- or overcooked. The villains on the
court are both partisan hacks and rigid ideologues.
But here’s the thing: You gotta pick one.
Sure, there are times when you can be both if the issues
line up just right. Sometimes doing the rigid ideological thing can align with
partisan interests—on the left or the right—but such instances are far, far
rarer than you’d think given how seamlessly progressive legal commentary flits
from one to the other.
‘Many are saying.’
This morning I listened to an interview on NPR with Michele Goodwin of the Georgetown
University Law Center. It was a hot mess. Goodwin said there’s a “real concern
that if there were a different kind of ruling, it might intensify the
Democrats’ ability to win midterm elections. The Supreme Court’s not a
political arm of government, but many are saying that it’s acting very much
like a political arm of government.”
Morning Edition host Michel Martin seemed to pick
up on Goodwin’s Trumpian gift for the “many are saying” mode of political
analysis and asked, “Is that a cynical take, or do you think that there's merit
to it?”
Goodwin replied, “That is a very good question. I would
say that 10 years ago, there would be judges and constitutional law professors
that would say that is cynical. Stay away from it. But these days, there are
judges, including Republican-appointed judges, that are saying you cannot
ignore that the Supreme Court is very much looking like a political—a
politically motivated arm of government. And that's unfortunate—the substance
behind it.”
I am curious who these Republican-appointed judges are.
If Thomas and Alito are the most reliable rubber stamps
for the Trump administration, and this decision was a sop to the
administration, why did they refuse to rubber-stamp it? And if, as Goodwin
suggests, this decision was intended to benefit the administration, does that
mean only Justices John Roberts, Kavanaugh, and Amy Coney Barrett are the
unprincipled partisans, or are the Democratic appointees water carriers too? Or
is it the case that when progressive justices rule the way progressives want,
it’s always on the merits, but it’s never on the merits for the conservative
justices?
Shameless Isgur pandering.
This is just one example of how people get the court
wrong—because they grade it with the wrong scorecards. As Sarah documents, in
the 2024-2025 term, only 9 percent of cases break down on a 6-3 “ideological”
basis, with the six conservatives on one side and the three liberals on the
other.
The share of 6-3 cases goes up to 15 percent if you
include cases where at least one liberal sides with the conservatives and at
least one conservative sides with the liberals. Meanwhile, most decisions—42
percent—are unanimous. And, in 70 percent of the close cases, the Democratic
and Republican appointees were divided on either side (“Cats and dogs living
together. Mass hysteria!” she adds). “In the last twenty years, just over 90
percent of the cases were decided with at least one liberal justice in the majority.
Let that sink in!”
The Trump administration loses unanimous cases about as
often as it wins them, i.e., about half the time. And keep in mind, one of the main reasons
Trump has the (fairly meager) win rate that he does is that his DOJ is very
careful not to bring cases to the Supreme Court where the government knows it
will lose. When lower courts slap the president down because the administration
is utterly lawless, DOJ attorneys usually don’t appeal.
Still, the common retort to this among people clinging to
the rubber-stamp narrative is that on the “big cases,” the partisanship is
evident. But as Sarah repeatedly notes—sometimes with Tourette syndrome-like
outbursts in inappropriate moments—when the partisanship fails to materialize,
the “big cases” lose their “big case” status. She writes:
On a random day in
early June 2025, each liberal justice wrote an opinion for a unanimous Court on
an issue conservatives championed. Justice Elena Kagan’s decision blocking
Mexico’s $10 billion lawsuit was cheered by the NRA. Justice Ketanji Brown
Jackson’s decision on reverse discrimination was praised by conservative
advocacy groups. And, religious advocates heralded Justice Sonia Sotomayor’s
opinion on tax-exempt status for Catholic Charities.
The decisions—on God, guns, and gays—had all been closely
watched during the term as “big cases.” But once they had been decided
unanimously and the decisions written by the court’s liberals, they were no
longer considered big. The pundits waited for the more divisive 6-3ers to come
down and then declared the court divisive.
Trump misunderstands the court because everything for him
is a loyalty test. For his appointees, it should be about loyalty to him. For the
other justices, it’s a loyalty test for America. And Trump’s yardstick for
patriotism is whether you agree with him. After losing the tariff case, he claimed the court had been “swayed by foreign interests.” He added that the majority
were “fools and lapdogs for the RINOs and the radical left Democrats. And not
that this should have anything at all to do with it, they’re very unpatriotic
and disloyal to our Constitution.”
Say this for Trump’s jurisprudential standards—they’re at
least consistent. You can’t say the same thing about a lot of the progressive
court haters. When conservative justices vote with him, it’s because they’re
partisan lapdogs. When they don’t, it’s because they’re rigid ideologues.
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