The New Supreme Court: Not Conservative, but No Longer Liberal

July 4, 2022 Updated: July 4, 2022

Commentary

Despite the establishment media’s fact-free description of the current Supreme Court as “conservative,” it really isn’t. But its decisions during the term just ended show that it’s no longer liberal.

A year ago—on July 4, 2021—The Epoch Times published my column assessing the court’s performance during the term just ended. I pointed out that its decisions didn’t support the common view that the bench consisted of a 6–3 conservative majority. I noted that although six members of the panel adhered to various mixtures of originalism and respect for precedent, none was a conservative activist in the sense that the other three members (Breyer, Kagan, and Sotomayor) were liberal activists. The court’s last true conservative activist was James McReynolds, who retired in 1941.

My column showed that the court’s major pronouncements during the previous term mostly stuck to the pattern created by “progressive” majorities from about 1940 to about 1990. That pattern had three components:

  • Liberal activist courts refused to respect limits in the federal government’s enumerated powers. They manufactured excuses not to interfere when Congress and the executive branch meddled in all sorts of activities outside their constitutional jurisdiction.
  • While giving the feds free rein, the 20th-century liberal majorities manipulated the 14th Amendment to void state laws they didn’t like. Liberal jurists invented a series of extra-constitutional “balancing tests” for this purpose.
  • They also attacked traditional culture and promoted dependency. They ordered states to grant financial benefits to people who hadn’t earned them. They forced states to shift to a nearly hostile stance toward religion. They voided or rewrote long-standing policies on land use, domestic relations, pornography, abortion, legislative apportionment, and criminal law. They even helped break down traditional rules of sexual behavior. They invented balancing tests to promote these purposes as well.

After surveying the cases last year, I concluded, “All three [liberal] patterns appear in the constitutional cases decided this term. Indeed, the Roberts court is proving to be more ‘progressive’ than the Rehnquist court of the 1990s and early 2000s.”

What a Difference a Year Makes!

A year later, however, a shift seems to be underway. Although the decisions in the 2021 term (just ended) show no evidence of flagrant conservative activism, they do evince a shift away from the liberal pattern.

Let’s turn again to the three components of liberal judicial activism and compare them with this term’s decisions.

The Constitution’s Limits on Federal Power

The first component of the 20th-century liberal pattern was refusing to curb federal overreaching. The justices almost stopped enforcing the Constitution’s limits on the powers of the federal government. They failed to respond while Congress invaded every aspect of American life. In addition, they usually deferred to federal bureaucrats and the “imperial Presidency.”

This term, however, the court began to assert the rule of law against the bureaucracy. American Hospital Assn. v. Becerra (pdf) declined to accept an administrative agency’s interpretation of its own power. Instead, the court reversed a decision it deemed unauthorized. West Virginia v. Environmental Protection Agency (pdf) struck down an overreaching “climate change” regulation. National Federation of Independent Business v. Dept. of Labor (pdf) and Alabama Assn. of Realtors v. Dept. of Health and Human Services (pdf) upended unauthorized federal COVID-19 regulations. However, the court did sustain a constitutionally dubious presidential vaccination mandate on health care workers (pdf).

So this year’s record against the administrative state is pretty good. But I’m sad to report that, as for Congress, nothing has changed: The current Supreme Court remains unwilling to respond even when a majority of states beg it to stop Congress from trashing the federal–state balance. One illustration is the court’s evasion of suits challenging Obamacare, even though (now that the individual insurance mandate has been repealed) the statute is flatly unconstitutional by the court’s own announced standards.

In all the cases curbing the bureaucracy, the court ruled only that the agency had exceeded the power that Congress had given it. In no case did it decide that Congress had exceeded its constitutional authority by creating or empowering the agency. This is unfortunate because reminding an arrogant Congress that it’s subject to the Constitution should be a top judicial priority right now.

The Court’s Treatment of State Laws

The second component of the 20th-century liberal judicial pattern consisted of frequent attacks on the states. An outstanding example was the abortion jurisprudence, which began with Roe v. Wade (pdf) in 1973. Over the ensuing years, in case after case, justices picked apart state abortion statutes, applying their own (often inscrutable) policy choices.

This term ended the court’s foray into abortion law. Dobbs v. Jackson Women’s Health (pdf) overturned Roe. This was a very rare abandonment of a major liberal-era case precedent. But it came only because the case was particularly egregious, only after 49 disastrous years, and only by a 5–4 majority.

The justices also upheld most state COVID-19 mandates. Many conservatives were unhappy with these decisions. As I hinted in a previous essay, however, they suggested that the court was about to reverse Roe. Why? Because a principal objection to the COVID-19 mandates was that they invaded certain rights not in the Constitution but invented by the court (“privacy,” “autonomy,” and “bodily integrity”). The holding in Roe derived from the same line of invented rights.

The majority’s rejection of invented rights in COVID-19 cases suggested that the majority would reject them in an abortion case as well.

The Court’s Treatment of Traditional Culture

The third component of the liberal pattern consisted of attacks on traditional American culture—a sort of “judicial counter-culturalism.” However, the cases issued during this last term sent a clear message: The court’s counter-culture days are over.

A liberal court probably would have extended Supplemental Security Income (SSI) benefits to residents of Puerto Rico. In United States v. Vaello Madero (pdf), an 8–1 majority refused to do that.

Liberal activist justices created an abortion “right” that’s not in the Constitution, but this court abolished it. Liberal activists failed to protect a right to keep and bear arms that is in the Constitution, and this court protected it. In New York State Rifle and Pistol Assn. v. Bruen (pdf), the justices also refused to extend liberal-style “balancing tests” into the Second Amendment. Justice Clarence Thomas’s opinion announced that the court will interpret the Second Amendment according to traditional methods—that is, by consulting the amendment’s text and surrounding history.

Particularly notable has been the justices’ protection of freedom of religion against the hostile “separation of church and state” rules created by their liberal predecessors. Kennedy v. Bremerton School District (pdf) upheld the right of a public school football coach to pray publicly after games. Carson v. Maken (pdf) struck down a Maine school choice program that disqualified religious schools from participating if the state decided they were too “sectarian.”

The court’s sympathy with religion sometimes clashed with its sympathy for state prerogatives. In 2020, the court ruled in favor of Jewish and Catholic houses of worship when New York state tried to shut them down, allegedly to stem the COVID-19 pandemic (pdf). This term, however, the justices refused to create a religious exemption from a New York vaccination mandate (pdf).

As you can see from the foregoing list, these cases show the court to be neither politically conservative nor, especially in the case of federal action, particularly constitutionalist. But if the trend holds, it will no longer be liberal.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Rob Natelson
Robert G. Natelson, a former constitutional law professor, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver.