Law is supposed to be an objective discipline. We praise the “rule of law” as an immutable hallmark of the American legal system, and take solace in the ideal that justice should be dispensed fairly and evenly regardless of who is dispensing it. Our judges wear black robes because they are meant to be indistinguishable. It theoretically shouldn’t matter which one hears a case because the law, not the individual, determines the outcome.
But here’s the spoiler: This is all hogwash. At least when it comes to the Supreme Court, who the judge is matters immensely, while what the law is matters very little. In fact, as the cases decided in the past few weeks make clear, the current justices are going to take almost every chance they get to issue the most politically conservative decision possible.
Let’s review what the court has done just in the past week or so. First, last Thursday, it gutted one of the key protections from the Miranda rights everyone knows (“You have the right to remain silent…”). Now, when police don’t give the required warning, defendants can still have their statements suppressed in court, and they can’t sue the police for the violation. Overturning Miranda v. Arizona has been one of the conservative legal movement’s goals ever since the case was decided in 1966. Its whittling last Thursday happened not because the Constitution changed, but solely because the court’s personnel changed. When Miranda was decided over 50 years ago, the court was at its most liberal. A more conservative court reconsidered the case in 2000, but refused to overturn it. In 2022, however, with the court now packed with conservative justices, the case has been partially rebuked, and the groundwork laid for a more complete rejection later.
Something similar happened with guns. In 2008, a conservative Supreme Court reversed decades of precedent to rule in District of Columbia v. Heller that an individual has the right to own a handgun. It was signal enough that court decisions are all about personnel, but what happened Thursday drove the point home. Ever since that 2008 decision, gun rights advocates have pushed the court to expand the ruling to get rid of even more gun laws. But the court never had enough votes to do it, refusing to hear subsequent gun cases as its most conservative members complained that liberal justices were avoiding important issues. That was until former President Trump appointed three new conservative justices to the court, which subsequently took up New York State Rifle & Pistol Association Inc. v. Bruen, ruling last week that there is a constitutional right to concealed carry. There’s now little doubt this motivated group of conservative jurists will soon expand gun rights even further.
The same personnel change animated Friday’s abortion ruling. Dobbs v. Jackson Women’s Health involved a ban on abortion at 15 weeks pregnancy, starting its journey before the court with the state of Mississippi asking only that the court approve this particular ban, not that it also overturn Roe v. Wade. But when Mississippi fully briefed the case, it asked the court not only to uphold the Mississippi law but also to strike down the landmark 1977 case guaranteeing a constitutional right to abortion access. What changed? Ruth Bader Ginsburg was replaced by Amy Coney Barrett. Because of that personnel change alone, Mississippi changed what it asked of the court. It got its wish on Friday, with the court’s conservative majority overturning Roe. Without Barrett and with Ginsburg, this would not have happened. That it did is a reflection not of law but of the people wearing the robes.
Then came Monday’s decision in Kennedy v. Bremerton. In that case, the court ruled that a public school football coach can pray after a game on the 50-yard line and not be disciplined for doing so, with the court’s conservative majority saying the coach has a free speech and freedom of religion right to pray right after games. In ruling this way, the court put the nail in the coffin of a 50-year-old precedent that determined what constitutes crossing the line separating church and state. In fact, the court’s ruling this week almost reads that protection out of the First Amendment entirely, which, again, has been a long-standing project of legal conservatives.
The past two days showed much of the same. On Wednesday, the court ruled that states have authority over tribal land, and earlier today, the court rejected the Environmental Protection Agency’s authority to regulate power plant emissions. Both of these cases, like the others, map perfectly onto the conservative movement’s wish list. The Court also approved President Biden’s rescission of President Trump’s “Remain in Mexico” plan, with Chief Justice Roberts and Justice Brett Kavanaugh joining the court’s three liberals, but this kind of cross-ideological decision is growing increasingly rare on this conservative court.
Unfortunately, the decisions the court handed down this term are just the beginning. The new right-wing majority on the court is showing everyone that it is not shy about flexing its conservative muscle. The justices are not doing anything piecemeal and are using every opportunity to rule in the most expansive way possible on some of the country’s most divisive political issues. There’s more in the pipeline for next year, such as matters related to affirmative action, religious exemptions to anti-discrimination law, and the ability of state legislatures to control elections. It’s a conservative activist’s wish list of issues for the court to tackle, and these justices are complying.
In dissent in the abortion case last week, liberal Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan wrote: “The American public … should never conclude that its constitutional protections hung by a thread — that a new majority, adhering to a new ‘doctrinal school, could by dint of numbers’ alone expunge their rights. It is hard — no, it is impossible — to conclude that anything else has happened here.
They are right. The group of justices committed to enshrining the conservative legal agenda into law means the outcomes of almost all coming cases are very unlikely to surprise. Ask what the conservative policy position is, and that’s how these politicians in robes will rule.