Yes, the Supreme Court is now heavily loaded with so-called “conservative” judges. Yes, I am uncomfortable with the consequences of some of their recent decisions. And yes, the heavily-liberal media is having a field day being “outraged” by some of the decisions.
And yet… and yet...
Ignore the emotional, political, and largely tribal overtones, and just look at the logic of the decisions. I find I agree with most of the recent decisions.
Remember, it is the explicit task of the elected representative of Congress to write the laws. It is the explicit task of the courts to help interpret the laws as they are written, especially in complex situation not necessarily anticipated when the law was written. It is explicitly NOT the charge of the court to “create” new laws, even if we wish such laws existed and yet Congress won’t pass them.
Start with the abortion decision, the overturning of Roe vs Wade. I personally think women should have absolute control over their own reproductive processes, and the state has no right to interfere in any way until the point that a live baby is actually born. But I could live with a reasonable compromise, such as a late-term abortion ban (say from the point where a fetus could survive outside the womb) except in cases where the women’s life is at risk. Nonetheless, Roe vs Wade was based on very questionable law, as even Justice Ginsberg admitted. There is no “right to privacy” anywhere in the Constitution, but an activist court in 1973, loaded in this case with “liberal” judges, “inferred” such a right, and then stretched it all the way to the abortion issue to “create” new law. It was poor law, and the court was, in my opinion, correct to overturn it. Women absolutely should have the right to abortion if they want it (if men could get pregnant this wouldn’t even be an issue!), but this was the wrong way to achieve that. Of course I am uncomfortable with the consequences, but that does not detract from the argument that it is not the Court’s job to “create” law where it does not exist, just to satisfy some ideological cause, however desirable. That task is expressly reserved to the legislature, whose members are elected, not appointed for life.
Consider the affirmative action case just decided. As I argued in my previous post, the language of Title XI is absolutely clear: “No person in the United States shall, on the ground of race, color, or national origin……”. It couldn’t be more explicit. And in fact, affirmative action was actually being used by the colleges to favor (actively discriminate for) one group of politically powerful minorities (blacks and Hispanics) against another less-powerful minority (Asian-Americans), clearly illegally (remember the national origin part above).
Consider the decision against President Biden’s plan to forgive student loans. That was estimated to cost the taxpayers something like $300 billion over the next decade. The Court’s logic, which I agree with, is that the executive branch, including all executive branch agencies, cannot impose rules which incur major monetary or political costs without express instructions from Congress. The underlying principle is that the power of the federal purse lies exclusively with the House of Representative. Agencies can make minor adjustments, but anything that has a major impact (and $300 billion is a pretty major impact) requires explicit direction in law from Congress. The IRS (an executive branch agency), for example, cannot on its own decide to raise the federal tax rates, nor do I want them to have that power - only the elected representative in Congress should have that power.
An aside – I always thought the proposal to forgive the college loans of students, mostly middle-class people who with their college degrees are better able to pay off loans than the non-college-degreed population – was highly unfair, and really just a political sop by the elites to the elites. Why should the 2/3 of the nation that doesn’t choose to go to college have to pay off their loans, but the college-degreed people don’t?
Consider the religions freedom case just decided – that a Christian designer of wedding websites isn’t required to build websites for a same-sex wedding, when same-sex weddings are against their religion. It’s hard to see on what basis the government – local, state or federal – should be able to require creative people to create things they find offensive or against their religion or beliefs. Should a kosher store be required to carry ham? Should a Catholic priest be required to marry two divorced people? Should a halal chef be required to cook pork chops? Just where does this end if anyone can demand a repugnant service from any store? Yes, some religions do object to some LGBTQ+ practices (like same-sex marriages). Do we really want the federal courts to be requiring by law that those religions change their doctrines – how is that going to work? (Not well, I would guess).
The same issue came up in the recently-decided case of the religious postal worker who objected to being required to work on Sunday (presumably to deliver Amazon packages, because what else does the postal service do on Sundays?). Again, the court reasoned that unless it imposed a significant cost penalty, employers had to accommodate the reasonable religious requirements of their employees. Having Sunday off in a mostly-Christian nation hardly seems like an excessive request.
So on balance I find I agree with the legal logic in most of the recent cases decided by the Supreme Court. And in fact it seems to me the dissents by the three liberals have mostly been emotional and ideological reactions, not well-thought out legal arguments worthy of a Supreme Court justice. They don’t like the results. Fine. I don’t like the results either in some cases, but I still think the court’s legal logic was correct.
The social and ideological issues posed, and they are real and important, need to be solved by laws written by elected representatives in the legislature, not by unelected judges. The fact that the supporters of these causes haven’t (yet?) managed to elect enough representative to Congress to get the laws they want doesn’t mean that the judiciary is the right way to bypass the system.
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