The Supreme Court’s squandered opportunity

In 2022 the Supreme Court threw away an opportunity to ameliorate the toxic polarization of America. After the unseemly gamesmanship that led to the appointments of Neil Gorsuch and Amy Coney Barrett, the new conservative majority should have looked for opportunities to, as Barrett said shortly after her confirmation, “convince you that this court is not comprised of a bunch of partisan hacks.”

Instead, it has become perhaps the most politically extreme and partisan court in American history.

I wasn’t enthusiastic about President Trump’s three appointees, but I was impressed by their intellectual quality and did not join the liberal stampede to oppose them. I hoped that they would understand the delicate position they were in and would act accordingly. I have been bitterly disappointed. 

Trump’s first secretary of defense, James Mattis, must have had similar hopes when he took that job. A few years later, he found himself saying: “Donald Trump is the first president in my lifetime who does not try to unite the American people — does not even pretend to try.” He could have been talking about today’s court.

The dramatic decision to overrule federal abortion rights is only the tip of a very large iceberg of rightwing triumphalism. The court has been so sympathetic to a libertarian philosophy that appears nowhere in the Constitution that it has devised vague new rules that constrain the federal government’s capacity to address climate change or prevent the spread of COVID-19. It has blocked efforts to guarantee voting rights. It has manipulated its own calendar in order to harm the Biden administration in ways that contrast dramatically with its earlier deference toward Trump. It deployed a distorted and dishonest pseudo-originalism to massively expand gun rights. It has even acted illegally, intervening in cases where it had no authority to do so. 

One source of my earlier hopes was Justice Samuel Alito’s 2019 opinion for the court in American Legion v. American Humanist Assn., in which the court held that the Establishment Clause was not violated by a World War I memorial cross on public land.  

Alito did not try to paper over the difficulties created by the Christian character of the symbol. He sensibly responded that “destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”  

The decision was carefully tailored to reach only monuments “that were first established long ago.” Justice Elena Kagan, who agreed with the result, found “much to admire” in Alito’s emphasis on whether longstanding monuments, symbols and practices reflect “respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans.”

Religious liberty is a field where equities must be balanced with some sensitivity, and here Alito showed that he could do that. He emphasized the Constitution’s aim “to foster a society in which people of all beliefs can live together harmoniously.”

That ended as soon as he had the votes to do what he liked. A prominent instance of his new approach was his opinion for the court in the abortion case Dobbs v. Women’s Health. Forced pregnancy obviously raises questions about the equality of women.  Alito casually dismissed that concern in one short paragraph, citing a preposterous 1974 decision holding that discrimination on the basis of pregnancy has nothing to do with sex discrimination — as if the subordination of women were not always about depriving them of control over their reproductive powers. It is not simply that he isn’t persuaded by the argument. He can’t even be bothered to seriously address it. We won; we have the power now; you don’t get an explanation. 

Religion is another field where the umpire now consistently roots for one side. The court deems any law that inadvertently inconveniences religious people to be discriminatory.  Alito claims to be an originalist, but he distorts history to propose a constitutional right for religious people to ignore laws they don’t like. The court has lately effectively authorized public school teachers to bully students to pray.

The Supreme Court managed in 2022 to garner the lowest public approval rating in its history. “If, over time, the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy,” Kagan said in July. Barrett was right that it is important for the country not to think that the court is a bunch of partisan hacks. The best way for them to keep the public from thinking that is to stop making it true.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press). Follow him on Twitter @AndrewKoppelman.