Today’s Supreme Court is a right-wing activist court experimenting with novel legal theories. It is not, and should not be called, conservative.
The problem is that the word “conservative” has two different meanings. The first meaning is “a person averse to change who holds traditional values.” The secondary meaning is “favoring private enterprise, private ownership and socially traditional ideas.”
Perhaps at one time they meant the same thing, but that is no longer true. Today’s Supreme Court favors private enterprise but it is eager for change. It rejects traditional legal values. It acts with hubris and scorn for the other branches of government. To use the word “conservative” to describe it is to ignore the many ways in which it has immodestly cast aside judicial restraint.
It could perhaps be called a “radical conservative” court but the best and least misleading description is “right-wing activist court.” Nothing else captures it, with the possible exception of and upside down American flag.
Even before the unprecedented decision to give a former president immunity from prosecution in certain criminal cases, there were several examples from the post-Trump terms of the court that demonstrate this, in areas as diverse as gun regulation, racial discrimination, the powers of federal agencies, state control over election laws, and fetal personhood.
For 221 years, from 1789 until a 2010 decision concerning Chicago gun laws, states were free to regulate gun ownership in any way they chose. Then the Supreme Court in a 2022 New York case told them they cannot adopt a gun regulation unless it, or something like it, was on the books in 1789, or maybe 1869.
For 233 years, from 1789 to 2022, states were free to discriminate on the basis of race in certain cases. Until 1954, states could lawfully require racial segregation. After that, some degree of discrimination in favor of minorities was allowed if needed to overcome arguable violations of federal laws or to promote educational diversity. In 2022, however, the court declared no racial discrimination at all would be tolerated.
That is an admirable sentiment, but as a practical matter it is the starting gun for novel suits by members of the white majority who feel they are victims of discrimination. The word “feel” may not be an exaggeration. The language at issue in the 2022 case is also found in the Title VII employment statute, and in 2024 the court said discrimination suits can be brought even if the harm suffered is insignificant. Never have the courts been more open to the white majority with racial grievances.
Ever since 1936 and the New Deal it has been understood that Congress could create federal agencies to regulate businesses and empower them with the ability to enact regulations that reasonably fell within their statutory authority. The regulations were, of course subject to Congress’ power to overrule them if the agency went too far.
In 2023 the Supreme Court ignored Congressional oversight and declared that it too has the power to overrule a regulation if it involves a matter of “vast economic or political consequence” and Congress has not been sufficiently specific in its delegation. Because Congress had no reason to anticipate that test when it wrote the laws and even today has to guess at its meaning, the Supreme Court has placed in jeopardy almost a century of Congress’ work.
From 1789 forward, it was assumed that states had the right to regulate their own elections and that decisions of a state supreme court were the final word on questions of state law. In the 2000 election case, Bush v. Gore, that was called into question. In a 2023 North Carolina decision, the court declared that it has the authority to overrule a state supreme court decision in an election dispute if that state court distorted state law “beyond what a fair reading required.” Because the opinion decided the case in favor of the North Carolina court, commentators generally overlooked the declaration, which adopted language the full Supreme Court had been unwilling to use in 2000.
Since 1789, while some states prohibited abortion, it was generally assumed by most state tort and other laws that a cause of action for damages on behalf of an unborn child did not exist until viability at the end of the first trimester. The 1973 decision in Roe v. Wade was generally consistent with this view in that it allowed greater restrictions on abortion after that time. But in the 2023 Mississippi decision overruling Roe, the court repeatedly referred to what it called “fetal personhood.” That has now been relied on by an Alabama court to give civil rights to an artificially inseminated egg. And although the Supreme Court said it was allowing states to decide the question, it will now face the problem of deciding exactly what the word “person” with rights under the federal constitution means.
The experiments are truly novel. The Warren court of the 1950’s and 1960’s was attacked for its activism, but most of that activism expanded to every state constitutional rules that had already been tried out by the federal government or at least some other states.
The new rules invented by the Roberts court have never been tried by anyone. Before the Trump appointments to that court, no one had ever suggested restricting state laws governing gun use to 1789 precedents. There was no across-the-board major question doctrine restricting Congress’ ability to delegate power to agencies subject to Congressional review. And before those appointments the court had never protected the white majority from all discrimination or claimed to be the final arbiter of state election law, nor had anyone else seriously argued for the rights of an artificially inseminated egg.
Even those who favor the court’s decisions should not call it “conservative.” They should admit that it is a “right-wing activist” court.
Luther Munford is a Northsider.
