The Supreme Court has final authority to make difficult judgment calls articulating the powers of government and the limits and constraints upon them. To merit the public trust, these judgments must not appear simply as assertions of individual value choices by the justices or willy-nilly discard long-established court precedents that profoundly affect people’s lives. Nor should they actively undermine the ability of governments to advance public purposes as established by a fair democratic process.
As the court begins a new term, regrettably, its recent history suggests that it lacks a majority of justices with sufficient concern about the basic continuity and integrity of the law or the ability of government to function.
The evidence has been growing quietly in recent years — and then, last summer, quite loudly, when the court decided to twiddle its thumbs while Texas enacted an abortion law that practically bans nearly all procedures while evading timely judicial review.
This distressing turn of events has a special irony for me personally. In the 1980s, along with three of the current justices (John Roberts, Samuel Alito and Clarence Thomas), I participated in the Reagan revolution in the law, which inspired and propelled the careers of three other current justices (Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett).
The Reagan revolution pitted itself against “activist” judges who were seen as following personal whims by altering the law and creating rights not found in the Constitution. Through interpretive tools like textualism and originalism, the Reagan lawyers sought to make the law more predictable and steady — as articulated by John Roberts, the job of justices was “to call balls and strikes, and not to pitch or bat.”
That revolution, however, has morphed into what it was meant to curtail, as the expanding right-wing majority on the Supreme Court has relied on an array of innovative constitutional rights to undermine traditional governmental actions while discarding longstanding precedents with which they disagree.
In the highest-profile case of the court’s new term, Dobbs v. Jackson Women’s Health, the conservative justices may be ready to repeal the constitutional right to abortion.
At the same time it seems ready to cast aside certain constitutional rights, the court today regularly gives sweeping new interpretations to other rights and invokes them to radically narrow certain government powers that were until quite recently uncontroversial, including, for example, powers related to public safety or our democratic process.
It may be ready to do just that in an upcoming firearms case in which a lower court upheld, in a manner largely consistent with other recent decisions, a New York State law that requires evidence of good cause for a person to obtain a license to carry a gun outside of the home. In the 2008 Heller case, the Supreme Court acknowledged that the Second Amendment right to bear arms does not allow a person to “keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Another potential blockbuster case — it is not yet officially on the docket — would consider a reversal of the court’s precedent approving affirmative consideration of race as a factor in college admissions.
My concerns about what the Supreme Court might do now are fed by its actions in the recent past. Last term was marked by a number of radical departures from precedent and existing law to elevate certain constitutional rights of individuals in a way that can stop government at all levels in its tracks.
Perhaps most unexpected and disturbing were decisions elevating rights of religious assembly over local public-safety rules related to Covid-19 that limited the ability to gather. Yet throughout our history, in matters of public health, the powers of local government have usually been at their apex. That did not matter here — nor did the fact that Chief Justice Roberts was among the dissenters.
Another decision that received less attention but was still shocking involved the Takings Clause of the Fifth Amendment, which says private property may not be taken for public use without just compensation. The decision struck down a California agriculture labor regulation that gave union organizers the right to come to specific areas of a grower’s property at limited times to speak with workers.
As Justice Stephen Breyer’s dissent made clear, rather than apply the court’s longstanding regulatory takings test — which balances several factors and would clearly have indicated that the law did not violate the Takings Clause — the court simply applied a different test previously reserved for a very narrow set of obvious takings. In doing so it raised major new questions about the constitutionality of some government business regulation and oversight that require access to private property.
In June, the court also invalidated Philadelphia’s requirement that its foster-care services contractors be willing to certify same-sex couples as foster parents, on the ground that it violated the free exercise of religion rights of a contractor, Catholic Social Services. This result appears to violate a court precedent of over 30 years holding that religious believers, like everyone else, are bound by generally applicable neutral conduct requirements that are not aimed at any religious groups — a sensible principle enunciated for the court by Justice Antonin Scalia in a 1990 case out of Oregon.
To invalidate Philadelphia’s requirement without striking down that precedent, Chief Justice Roberts engaged in what Justice Gorsuch (with two other conservative justices) called a “statutory shell game.” The court avoided the outrage that would have followed an outright precedent reversal — but the effect is nearly the same: The idea that religious beliefs provide no exemption from neutral governmental policies appears all but dead.
The court also intervened for the second time to severely undermine the Voting Rights Act when it voted 6-3 to greatly narrow Section 2. That will make legal challenges to new electoral laws in some states far more difficult. As Justice Elena Kagan wrote in a dissent, the majority opinion “mostly inhabits a law-free zone,” leaving the statute’s language “almost totally behind” and simply “creates a set of extra-textual exceptions and considerations to sap the act’s strength.”
Finally, by a 6-3 vote, the court invalidated California’s requirement that charities in the state disclose certain information about the identity of their major donors. The court called it an unconstitutional burden of the First Amendment free association rights of those donors. But this sweeping invalidation, as Justice Sonia Sotomayor’s dissenting opinion makes clear, profoundly departed from many earlier cases that have required such First Amendment claimants to offer evidence that a disclosure would chill association or raise a risk of threats or intimidation. It is also a reversal from the court’s nearly unanimous endorsement just a decade ago of the idea that disclosures of donor identity are critically important to the public interest in transparency.
In their general direction and thrust, these cases from the last term do not differ materially from the approaches that the court’s most conservative justices have been pursuing for years. What is new is the court’s frequency and brashness in achieving these radical outcomes and its willingness to do so too often without an honest explanation and acknowledgment of what is actually going on.
Perhaps the six-member conservative majority — with Chief Justice Roberts’s sometimes moderating influence now apparently curtailed — has come to this point out of loyalty to a proposition articulated by Ronald Reagan himself: “Government is not the solution to our problems, government is the problem.”
But they would do well to remember why the Reagan revolution in the law came about in the first place. It was motivated by resistance to judicial meddling, primarily by the Warren court of the 1950s and ’60s, and it rested on the idea that judges are stewards of an existing body of law and not innovators charged with radically remaking it.
Failing to remember that will squander the public trust that is so essential to the court’s historically unquestioned authority to say what the law is. Already this year, Americans’ approval of the court has plummeted.
It will also strengthen the calls for structural changes. Some proposals to overhaul the Supreme Court — like the institution of term limits and a modest expansion of the bench — would arguably be salutary.
But that is a debate best pursued on its own merits and not because an out-of-control court has lost touch with its mission and must be stopped from casting aside long-established precedents and radically altering our system of government in accord with policy preferences of individual justices.
Donald Ayer, a former U.S. attorney and principal deputy solicitor general in the Reagan administration and deputy attorney general in the George H.W. Bush administration, is an adjunct professor at Georgetown Law.