Changes only at the margin

From A Tumultuous SCOTUS Term by Declan Garvey, et al.  The subheading is Plus: Biden administration hit with court order limiting communications with Big Tech platforms.

Some elected officials sure are frustrated with the Supreme Court’s jurisprudence these days. “Useless judges,” one claimed, may view the Constitution as a “thing of wax” to “twist and shape” as they see fit.

Oh wait, that was Thomas Jefferson.

The court has always been the object of scorn from those upset by its rulings, but 221 years since Jefferson’s presidency began, SCOTUS faces intensified attacks on its status as a nonpartisan constitutional arbiter. With the dust settling after another term’s ending, the justices are headed out of town for summer vacation and we’re reflecting on their rulings. The court handed down 58 decisions this year, many of which blurred traditional ideological lines. The justices’ rulings in the highest-profile cases also tended to line up with public opinion—but that hasn’t stopped progressives’ calls for changes to the court.

A knowledge of history and numeracy are both key skills we would wish to see in journalists and which we usually do not.  

The Supreme Court, one of the key three branches of government has always been suspect by someone.  It lacks the power to coerce as the Executive can deploy.  It lacks the power of the purse, Congress's weapon.  It can merely make an argument and expect that decision to be respected.  As it should be.

But anyone on the losing end of that argument tactically usually only see advantage to resisting the court's decision.  They are usually not interested in respecting all the trade-offs and constraints inherent in our written constitutional republic with all its checks and balances.  People want to win and if someone or an institution stands in the way, then out comes human nature, red in tooth and claw.

For thirty-three years, the Supreme Court delivered a series of ground-breaking decisions noted as much for their policy nature as they were grounded at all in jurisprudence.  Roe v. Wade was probably the archetype of a policy decision dressed on jurisprudential cloth but it was one of many.  

Policy decisions which eventually began to be notable for their divergence away from Classical Liberal philosophy grounded in rule of law, equality before the law, property rights, due process, natural rights, etc.  Since 1986, with Rehnquist, at first slowly, and now at an accelerating pace, the court rulings have veered back to Classical Liberal principles.  Thank Goodness.

However, what that has meant is that a mainstay of the Progressive/Socialist wing of the Democratic Party, the Supreme Court, which used to reliably effect policy changes without having to get agreement from Congress, no longer functions in that capacity.  And given that the solid majority of Americans do not support Progressive/Socialist policies, this clearly represents an existential crisis for Progressive/Socialists, the Woke, the mainstream media, Academia, and the deep state.

But it is worth remembering, as Garvey et al remind us, that the Supreme Court is always controversial to the power not actually representing the values and interests of the public.  

While the mainstream media has been working overtime over the past couple of weeks to represent the Supreme Court as an out-of-control arm of the right wing of the Republican party, the numerical reality is more mundane.  This session looks like most sessions with variances at the margin mostly notable only to close court watchers.

I have not yet seen a final accounting of all the decisions it seems like this year may be on track to look like last year when:

Fully 46% of cases were decided unanimously or with eight of the Justices in agreement with one another, including all or 66% of the three liberal justices.  

54% of all decisions included at least one liberal justice in concurrence.  

Only 16% of cases involved a 5-4 decision and among those, the liberal justices were joined by two conservatives in order to achieve a 70% win rate.  

I don't get the sense that the Supreme Court justices have gotten more radical.  Rather, what we are seeing is the gradual reversal of the most notorious instances of policy making decisions during the Warren/Burger era.  Bringing us back to a more Classical Liberal view of the Constitution.

Which is marvellous.