Maybe Supreme Court Judges Really Are Driven by Politics

How conservative jurists only approve state restrictions over individual freedoms when it suits their purposes.

As the Supreme Court begins a new term, there has been a lot of talk about whether the justices are simply politicians in robes, with several of the current Justices speaking out to say that differing judicial philosophies, not politics, drive their decisions. Support for the Supreme Court as an institution is at a new low, with only 40 percent of Americans saying they approve of the job the Supreme Court is doing. That represents a nine-point drop since July, when 49 percent approved. In response, Justices Clarence Thomas, Stephen Breyer, and Amy Coney Barrett all gave public remarks in which they claimed that the Supreme Court is not, as Barrett put it, “comprised of a bunch of partisan hacks.”

But it is hard to take them seriously when the reality is that their differing philosophies have obvious political consequences. Nowhere is this truer than whether the Court decides to uphold individual rights or instead defer to state restrictions.

When a plaintiff challenges a state law as unconstitutional, the Court must decide whether the law actually infringes an individual right and whether the state has a good enough reason for doing so. If the right is deemed “fundamental,” then the state must satisfy a high bar to justify it. That’s because various parts of the U.S. Constitution (especially the Bill of Rights and other amendments) are designed to protect individual rights against government encroachment.

But in case after case involving voting rights, abortion, and other hot button issues, the newly emboldened conservative majority has simply deferred to a state’s rules. That is, they have approved of laws that infringe individual liberties without requiring much justification from the state on why those laws are necessary given the specific circumstances. They have credited a state’s rules over fundamental rights.

Take the 2020 litigation about voting during a pandemic. Lower federal courts issued decisions that required states to expand their voting laws to make it easier to vote, but the federal appellate courts—full of Trump appointees—and the Supreme Court majority consistently overturned those decisions, explaining that states have wide leeway to run their elections as they see fit. The Court also deferred to Arizona voting laws while making it harder for plaintiffs to assert claims of discrimination under the Voting Rights Act.

In the litigation over SB 8, the new Texas abortion law, the Court’s majority used a procedural tool to allow Texas to implement the strict law, essentially banning abortions after six weeks of pregnancy by allowing private individuals to sue abortion providers for $10,000. Not only does this ruling suggest that the basis of Roe v. Wade may be overruled later this year, it also signals that states have wide leeway to regulate abortion access as they wish, with little concern for the individual constitutional rights of pregnant women. A federal judge put the law on hold for now, but appeals are coming—but the highly conservative Fifth Circuit appeals court once again stepped in (as it had with the first SB 8 law suit)—to lift that injunction. Meanwhile, Republicans in at least six states are contemplating similar restrictive measures

Yet when it comes to gun rights and religious liberty, we can expect the conservative Court not to defer to states in the same manner. In two prior cases in the past decade, the Court expanded the individual right to own a firearm within the Second Amendment, and it looks likely to do so again this Term in a case out of New York. And in several cases involving restrictions on religious gatherings during the pandemic, the Court invalidated state rules—especially after Justice Amy Coney Barrett joined the Court.

While deference was apparently warranted for voting rights and abortion, it seems to be nonexistent when conservative litigants press their claims on other issues.

But this approach has it backward. The Court should not defer to state rules only when it feels like it. They should instead require states to present specific, persuasive justifications for why they must infringe on individual liberties.

Of course, given actual evidence of real-world harms, states have strong reasons to place some limits on gun access and large, indoor gatherings during a pandemic (at least before the vaccine was available). The government is charged with protecting public health and safety, and these rules, so long as they are narrow, are directly related to that goal. On the other hand, there is no good reason to make it harder to vote. A justification based on generalized assertions of phantom voter fraud is insufficient. It is particularly absurd to defer to politicians on voting rules given that they have every incentive to craft election rules that will help to keep themselves in power. “Voting the bums out” doesn’t work when the rules are stacked against the voters.

That said, states should still be put to the test to explain the precise rationales for any of these restrictions that impact individual constitutional rights—whether those rights are favored by the left or the right. Blind deference to states is unwarranted for any infringement of a fundamental right. But the Court’s current jurisprudence picks and chooses when to apply that deference, leading to predictable outcomes along ideological lines.

The Justices may try to hide their political predilections behind claims of differing judicial philosophies. Often, they do this through the amount of trust they place in legislators, depending on the specific right in question. But if individual constitutional rights are actually fundamental to a democracy, then the Court would require governments to justify all of their rules—not just the ones they don’t like.

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Joshua Douglas

is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting. Find him at www.joshuaadouglas.com.