Several media outlets recently reported on a Gallup poll finding that forty-three percent of Americans think the current Supreme Court is “too conservative.” Excuse me, but that finding is an example of a fundamental misperception that infests current American debates, and keeps our political arguments unilluminating and unproductive.
The current Supreme Court is many things, but conservative is certainly not one of them. Indeed, some of the most trenchant criticisms of the entirely corrupt Court majority have come from jurists and scholars with unimpeachably conservative bona fides. For example, J. Michael Luttig–a conservative icon and former judge who consistently issued very conservative opinions when he was on the bench– called the Court’s bestowal of immunity for “official acts” of the President “irreconcilable with America’s democracy, the Constitution, and the rule of law.” Legal scholars, including a number of conservatives, have argued that decisions rendered by the current majority break with centuries of understanding, lack textual support, and undermine accountability.
Several conservatives have warned that the Court is legitimizing a “kingship” rather than a presidency.
The Court’s unprecedented use of the Shadow Docket–historically a mechanism reserved for matters requiring an urgent response–has drawn criticism from across the ideological spectrum. The Court’s majority has used the Docket to issue decisions that lack the sort of legal analysis that lower courts rely upon for guidance, and has issued those decisions without the benefit of briefing or argumentation, lending credibility to the impression that they are operating via prejudice rather than analysis.
In a string of unexplained decisions utterly inconsistent with precedent, the majority has eroded the independence of previously independent agencies and commissions. It has allowed Trump to withhold funds appropriated by Congress, despite the fact that the Constitution explicitly and exclusively grants funding decisions to the legislative branch. It has overturned the longstanding deference of the judicial branch to agency understandings of their own regulations, empowering judges to determine highly technical matters; the majority’s “religious liberty” decisions have significantly eroded the First Amendment’s separation of church and state in favor of a performative and illiberal Christianity, and–perhaps most shocking of all– it has allowed ICE to ignore the probable cause requirement of the Fourth Amendment.
The list goes on.
Words have meanings, or at least they should. A truly conservative Court follows–conserves–legal precedent unless faced with formidable evidence that the precedent is no longer consistent with modern realities. Stare decisis and respect for legal predictability have long been lodestars of the judiciary, including–indeed, especially–conservative members of that judiciary. Evidence of such respect is nowhere to be seen in the Roberts Court; for years, Clarence Thomas has signaled his desire to overturn decisions with which he personally disagrees, and Samuel Alito gave a metaphorical finger to both individual liberty and fifty years of precedent when he authored the Dobbs decision.
Conservatism has been defined as a philosophy of preservation and prudence; conservatives value continuity, social stability, and gradual evolution rather than radical change. Conservatives prioritize respect for institutions, the rule of law and moral and cultural traditions. In contrast, reactionary far right ideologies are fixated on a desire to “reclaim” a mythic past. Reactionaries reject checks and balances; they embrace nativism and define belonging in racial and religious terms rather than civic ones, and they detest the pluralism that defines today’s America.
Where conservatism sees order as compatible with liberty, reactionary and populist far-right movements define order as the suppression of difference.
The problem with labeling our reactionary Court as conservative is that such a label obscures reality. It’s akin to the misuse of other labels like Left-wing and socialism, but it’s arguably more dangerous, because it makes a very real threat–an ahistorical judicial deviation from the rule of law in favor of a very unAmerican authoritarianism– seem like a normal part of America’s ever-shifting political environment. We’ve always had courts and political parties that are properly understood to be more conservative or more liberal, but by mis-labeling this radical Supreme Court as “conservative,” we minimize the extent to which it has deviated from the political and constitutional norms to which both liberal and genuinely conservative courts have adhered.
If this Court was truly conservative, America wouldn’t be in the midst of an authoritarian coup.
Oh so true!!! Thanks for sharing your insight. It makes my day.
You’re right. Conservative is NOT the correct description. These six political monsters are fundamentally radical extremists of the worst sort. They’re all appointed by Republican presidents, of course, and approved by Republican majority Senates.
But I think it extends further back in time to when another egregious radical – another Federalist Society founder, by the way – was nominated by Ronald Reagan (He who could do no wrong, but ended up doing EVERYTHING wrong.), Antonin Scalia. His authoring the majority opinion for Citizens United v. FEC is continuing to prove that the Republican party is indeed the party of kings and moguls. To them, it seems, the Constitution is a nagging inconvenience to the purpose of taking all the money and turning the working classes into the serf class.
Then, the Bush appointees beginning with the pathetically corrupt Clarence Thomas and then Alito and Roberts – still more Federalist Society toadies – and the groundwork was laid for this current batch of doofuses now ignoring the rule of law and the Constitution so that a diseased psychopath can finish destroying the pillars of our democracy and society.
Sometimes I think I’m too far around the bend to keep blaming Republicans for our current state of impending disaster, but they keep proving me right.
ive listen to arguments in court,s. im interested in a few subjects. when listening to supreme court arguments, its deep. usually im set back by what seems like the trivial and over broad past cases being mentioned. that is what ive expected. where has this changed? listening to the court today, the lawyers for the magats seem to hold the courts balls rather than the court holding the balls. the shadow dockets, 20 since the court let out for the season. to me shows a blantant reversal of power to one side, the executive office. im not a lawyer, but law has been a look and see from my side of the fence. im a felon, grew some pot and got the federal mand,min show. but i didnt allow the system to run me over. i protested, and the fed,judge allowed my view. basically i won, did the time and was granted appeal by the same judge. i became respectful of the law beyond its written text. today, looking at the supreme corrupt court of roberts, i spit. some how after decades of respect im fully awake to the side show/back room of the garbage in the dirty white house has made of our courts for trumps admins own use. degraded, and cow towed to lows i would have never expected. mcconnel was right, take the courts over. time to mcconnel the blame and the game. now the con man the billionaires and his demented admin is fully in charge. now imagine alito and thomas making decision next november on the lagitimacy of mid term elections, or if that court will allow the election..
im finishing up my seasonal road work. infrastructure stuff. im sure trump will screw the prevailing wages next for us to deem more profits disguised as cost cutting to the owners over the people who do the work. expect it..
theres a proposal to drop the h2b visa minnwage to ag workers as to keep prices lower in the freash food isle. its a scam to cut wages from the bottom up on all workers. see american prospect, dave dayan..
In other news: How sweet it is to see a Venezuelan woman be awarded the Nobel Peace Prize. I’m sure the orange hairball’s guts are churning. I can’t wait to hear what he’ll have to say about Norway, Venezuela or the Nobel Committee. I expect we’ll see full-blown psychopathy on display by the spoiled, tortured child that 78 million people voted for.
So many of our “labels” are problematic and keep the conversations sterile, binary and derisive. We should have NEVER been in the false dichotomy of “pro-choice/pro-life” conversations and “liberal/conservative” terms have been co-opted and their connotations vary wildly from their actual “meanings”. SCOTUS is such an arcane concept for most people, any opinion poll on SCOTUS is anything but illuminating.
Well done, Sheila!
I’ve never considered SCOTUS conservative since Scalia joined the bunch. They are all Koch and Leo puppets. I have no idea how Clarence Thomas hasn’t been removed from the bench for all the ethical violations he’s committed. And, not to mention his psychotic and corrupt wife.
The problem is they fit right in with all the corrupt politicians in Washington. They don’t stand out as being criminal since they are all criminal sociopaths.
As Leo pivots towards our educational system, we can expect more corrupt decisions from the Supreme Court. As I mentioned recently, the Heritage Foundation wants to eliminate every public school since “teachers are talking kids into transitioning genders” and “providing the furries with litter boxes.”
Probably the most impactful decision will be when Trump invokes the Insurrection Act as he and the Nazi Miller get more desperate. They see their ratings plummeting, and even Americans are turning against their immigration raids. I saw all the corporations and billionaires feeding from the ICE trough so that Miller will continue the pogram. The ultimate goal of the IA is to grant Trump (mostly Miller) unrestrained power, with the prize being the cancellation of elections. I can’t wait to hear their excuses and how they manipulate the military or war machine.
By the way, China has recently implemented export controls on semiconductors and their rare earth minerals, which are used to manufacture high-tech products and batteries. Anyone who uses China’s rare earths must obtain an export license from China. #ouch
If it goes into effect on November 8th, or after they meet with Trump later this month, our economy will be in big trouble. Our tech sector, particularly in AI, will suffer tremendously and likely trigger a Dot Com Bubble 2.0. The Magnificent 7 will lose value, and they have propped up the market almost solely for the past several years.
There is a reason gold is now trading at over $4,000 for the first time. 😉
Our insatiable appetite for political entertainment and storytelling has hijacked the social stability we once took for granted. Part of the country chooses media that tell one story, while the other part hears and sees an entirely different one.
Facts no longer matter, as we only want to be informed of worlds that conform to our expectations.
Ultimately, this tragic sorting of the country better serves commercial interests by revealing two different brands. A newly coined term distinguishes two groups: “woke,” whose purchasing habits align with one perspective, versus those who struggle to move beyond the past and adapt to a rapidly changing global culture.
Two countries, two peoples, two beliefs.
Will the republic ever reunite? Certainly not until journalism is recovered.
Whine as your might, Shiela, but it was “conservatives” who claimed that definition proudly in every Republican boardroom and country club across the country as they laid the groundwork for what we have now… knowingly or unknowingly. They laughed at the false utterances of Rush Limbaugh, paid no attention to the dirty tricks of Strom Thurmond and Mitch McConnell, and praised the greedy business deals they saw all around themselves. While they claimed to be conserving the rule of law by moving at a slow pace, what they were really conserving was their control over a system that allowed them to rule the roost; ethics, morals, and decency be damned. It was one hundred years AFTER the end of the Civil War before desegregation and equal rights were put into law, and those laws are still attacked by “conservatives”.
If the President has immunity for anything that is done as part of his “official duties” the next question is: What are his official duties?
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
Between his attempts to change the Constitution by way of Executive Orders and his penchant for ignoring the powers granted in the Constitution to the other two branches of government, I would argue that he has done very little that might remotely be considered an “official duty”
Ceremony
Sorry about the ceremony. It never got off the ground mostly because I didn’t know it was there.
The SCOTUS majority is nothing short of a cadre of uncaring, unthinking, religious warriors, bent on supporting nay movement towards a theocracy.
Vernon, I’m sure that Trump will now float the idea of invading Sweden.
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
Hmmm….HE has certainly “executed” (murdered) the Office and “to the best of HIS ability” preserved, protected and defended the Constitution…”. What have we to complain about?? Oh…that “ability” thing….
You are SO right, Sheila: “by mis-labeling this radical Supreme Court as “conservative,” we minimize the extent to which it has deviated from the political and constitutional norms to which both liberal and genuinely conservative courts have adhered.
If this Court was truly conservative, America wouldn’t be in the midst of an authoritarian coup.”
The press and the pollsters need to get a clue and cease allowing the narrative to shift in this egregious way, cementing the term conservative for those on the court that are as you describe them. I just finished reading Anthony Kennedy’s apologia—in today’s Times—although he wouldn’t accept that characterization of his take on the court and his time on it. I’d like to see him be more aggressive about his ‘conservatism’ and what he sees in place on the court now, but, then again, his clerk Kavanaugh, who he continues to revere is among them so, not holding my breath..
Vern-
Nobel Peace Prize Winner Dedicates Her Victory to President Trump
Gail,
WHAT?! LOLOL.
Thank you, Sheila, for the excellent elaboration on the meaning of words, something that has long bothered me.
Theresa – I think that many (too many) true conservatives, either out of self-delusion or greed (I’ll get mine – it will be OK), just went along with the slow slide to the destruction of our government, from Reagan’s “government is the problem” desire to bring back the Articles of Confederation, through our best Republican President (end welfare/balance the budget Clinton), and W (it was a war crime for the Japanese to use waterboarding, but not if we do it), to Trump.
We should still insist on using the correct words to describe the facts – this Supreme Court is Reactionary, not Conservative. Call out anti-American subversives for what they are.
On that note, I declare Trump to be the best President since — Jefferson Davis. Better even. Trump’s army successfully invaded DC – twice, and he is sending Texas Confederate troops into northern cities. Best Confederate President ever.