Even if Supreme Court opinions were issued anonymously, legal observers would recognize the author of the opinion in the affirmative action case issued on the penultimate day of the Court’s term:
Harvard identifies the following educational benefits that it is pursuing [in its use of race-based affirmative action in admissions]: (1) “training future leaders in the public and private sectors”; (2) preparing graduates to “adapt to an increasingly pluralistic society”; (3) “better educating its students through diversity”; and (4) “producing new knowledge stemming from diverse outlooks.” . . . How is a court to know whether leaders have been adequately “train[ed]”; whether the exchange of ideas is “robust”; or whether “new knowledge” is being developed? Even if these goals could somehow be measured, moreover, how is a court to know when they have been reached, and when the perilous remedy of racial preferences may cease?
The Twitter-snark response to this from Chief Justice John Roberts is, um, yeah.
This was the precise issue underlying affirmative action cases from Regents of the University of California v. Bakke in 1978 until this week’s massacre of race-based university admissions programs: Who measures whether colleges and universities are performing their chosen mission? Can judges decide whether affirmative action furthers the goals of an educational institution? Does anybody want them to?
These are not legal questions; they are educational ones. That’s not to say that law is irrelevant to the answers, but only that the question must be framed in educational terms before judges enter the fray. Until this week, every affirmative action ruling has at least paid lip service to the idea that decisions by educators should receive some deference from judges. Once the institution’s leaders selected educational goals, the argument went, courts provided constitutional boundaries. No one, I suspect, would want to do it the other way around and ask the Court whether a college should maintain a foreign-language requirement or Gender Studies major and then ask the dean whether that was constitutional. Why would anyone care what these cloistered lawyers think about language instruction?
That was then. We are now in the era of Critical Race Theory bans and “Stop WOKE” statutes. Professional educators are not just in disfavor; they are the enemy. In the red states, governors and statehouses nix African-American studies curricula and micromanage classroom instruction. At the federal level, courts—and as of this week, only courts—dictate educational policy on questions of diversity and inclusion.
We should be used to such usurpation by now. The Supreme Court majority has also assumed responsibility for climate policy, public health, firearms regulation, and Clean Water Act enforcement.
To understand how the Court’s tentacles grew, we need to look at constitutional law as courts practiced it over the three decades I’ve taught it. Until the advent of the post-Trump majority, much of constitutional law has centered on what we call the “balancing tests.” Its essence was a mnemonic I learned in first-year Con Law: “When the government wants to do something to you, it has to give a reason. If it wants to do something really bad, it has to give a good reason.”
A court’s job was to assess the gravity of the government’s reasons and the likely results of its actions: How important is the government’s reason? Traffic control, for example, is fairly important—but probably not important enough to allow the feds to send yellow-light jumpers to Supermax. On the other hand, national security may justify strict criminal penalties for those who—to pick a random example—make off with secret documents and refuse to return them. Judges ask: What will be the effects of the government’s new rule? Will it work? If so, will its good results exceed the harms it causes to private parties?
As you can see, this kind of adjudication was pretty fact intensive. “Lawyers know life practically,” Samuel Johnson once said, and judges were expected to use that kind of practical wisdom in assessing government actions. In Brown v. Board of Education, the Court cited social science research revealing the harms segregated schools had done and were doing to Black students. In the abortion cases, from Roe v. Wade in 1973 to Whole Woman’s Health v. Hellerstedt in 2015, judges conducted detailed surveys of medical knowledge. They applied those facts against the predicted health and social effects of restrictions on reproductive healthcare.
In other words, the Constitution was the rulebook for operating a democratic society; the courts’ job was to assess how well the rules worked. Sometimes they got the answer wrong—but they understood that the question was, “What effect will this decision have on living human beings?”
There’s a new paradigm post-Dobbs v. Jackson Women’s Health Organization, the 2022 decision in which the Court’s majority napalmed the right to abortion. Today’s Court majority freely acknowledges that courts do not have the knowledge or skills to understand the consequences of legal rules in areas like medicine, education, and public health, but instead of deferring to institutions that do, the Court’s majority has proclaimed that the practical consequences of legal rules are simply no longer relevant. “History and tradition,” not informed predictions about the workings of a democratic society, are now the sole decision criteria. There’s no need to consult expert testimony or scholarly research. Everything we need can be found in old law books.
Look at the majority opinion in Dobbs. Abortion is a deeply personal issue for many Americans—including generations of women whose lives have been touched by their access, or lack of access, to reproductive health care, including birth control and abortion. In the years between Roe and Dobbs, hundreds of women came forward to share publicly their stories of how access to abortion had shaped their lives. Any judge who could read an amicus brief would know that demolishing the entire structure of reproductive rights might have a profound impact on women’s lives as well.
But don’t expect the justices to have anything to say about that. In Dobbs, Justice Samuel Alito explained that decisions about reproductive rights depend “on an empirical question that is hard for anyone—and in particular, for a court—to assess, namely, the effect of the abortion right on society and in particular on the lives of women. . . . This Court has neither the authority nor the expertise to adjudicate those disputes . . .”
Translation: What will the new rule mean for women? Who knows—and, for that matter, who really cares?
Other Court rulings show the same cavalier attitude toward what someone not berobed might naively call “the real world.” In New York Rifle & Pistol Association v. Bruen, Justice Clarence Thomas’s 2022 majority opinion noted with dismay that lower courts had been analyzing Second Amendment cases in balancing mode. First, they asked how severely a government regulation “burdened” individuals’ Second Amendment rights; next, they measured that burden against the “governmental interest” the regulation was designed to protect. Thus, to offer my own example, a court might assess a restriction on high-capacity ammunition magazines by noting that such a restriction doesn’t prevent anyone from owning a weapon (meaning the “burden” is less than crippling) and then analyzing whether restricting these magazines would make it less likely that mass shooters would succeed in killing and wounding human beings in public places like schools and shopping malls. This involves a governmental interest—preventing mass murder—that until recently was seen as pretty darn compelling.
But, Thomas explained, the whole “effects” part of the test was bogus. Courts were not permitted to assess the practical effects of firearm regulations, only cases and treatises from eras when there were no firearms, bullets, or automatic weapons. “Instead [of ‘balancing’], the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” he explained, adding later, “The Second Amendment ‘is the very product of an interest balancing by the people’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.”
“All other interests”—above, that is, the lives and deaths of children, the success or failure of public institutions, the very tenor of daily life; a judge’s only job is to brush away considerations like that and enforce some imagined version of the Framers’ vision of an armed society. If that means blood in the streets, it’s not the judges’ fault. With that, Thomas invalidated a statute that had served New York State for over a century, whether the governor was named Roosevelt or Rockefeller, whether the statehouse was Democratic or Republican.
This is the central move of the post-Trump Court. The majority says “history and tradition”—and only “history and tradition”—are the sources of constitutional law. To determine whether there is a federal right to choose abortion, we ask whether there was one in 1868, 1787, 1320, or some other random date. If not, then there isn’t one today—regardless of changes in medical knowledge, changes in women’s role in society, changes in the law, and indeed changes in the Constitution itself. (Consider the Fourteenth and Nineteenth Amendments, which to many legal observers have something to do with women.) Abortion bans were passed at a time when women could not vote and had no equal protection rights, but those bans are “history and tradition.” Game over.
This “history alone” focus carries over from constitutional questions to the most technical administrative cases. Federal regulatory statutes are passed to equip the government to deal with unforeseen problems—such as, let’s say, emissions that affect the atmosphere to the point of changing the climate. But when such a problem becomes acute, the statutes can’t be used to ameliorate it because they were never used that way before. In West Virginia v. EPA, for example, the Roberts majority decided that the Barack Obama Administration’s Clean Power Plan must violate the Clean Air Act because even though the act was passed in 1970 and the Environmental Protection Agency hadn’t regulated CO2 emissions broadly until 2015. At that point, the Chief Justice tut-tutted EPA “claim[ed] to discover in a long-extant statute an unheralded power’ representing a ‘transformative expansion in [its] regulatory authority.’” The point of statutes, like the point of constitutions, is apparently not to create tools for the future or endow agencies with expertise some latitude, but to freeze values from the past.
And, hey, if that means catastrophic damage to the climate, well, tell it to someone who cares. “Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Roberts grudgingly admits. (After all, some people think climate change isn’t real, and others think it’s good. I’m just a simple lawyer. What do I know?) “But [a] decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
Similarly, if the final success of John Roberts’s 40-year vendetta against affirmative action means closing college doors on groups that had only recently gained entry, well, that may (or may not) be regrettable, but it’s not the Court’s business. Courts can’t measure it, so it no longer counts.
The majority’s toxic post-Dobbs jurisprudence blends two elements. First, as mentioned above, is the Thomas-Alito turn away from the future to the past. Consequences do not matter, nor do the lives of the present generation—only the practices of those long dead.
The second element is Roberts’s I’m-just-a-lawyer dodge. It has to be said that Roberts, with two degrees from Harvard, is among the most educated lawyers ever to sit on the high bench. But not since the late Chief Justice Warren Burger—and perhaps not even since the late and infamous Justice James Clark McReynolds—has a Supreme Court justice been so openly, flamboyantly anti-intellectual as Roberts. Remember his dismissal of law reviews in 2011? “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” One need not be a fan of the law-review literary form to note that many brilliant scholars of varying persuasions produce a good deal of practical criticism of the Court, and dismissing their work as Bulgarian trivia is at best ungracious and at worst dishonest.
When voting-rights advocates presented extensive evidence of the power and effect of computerized partisan gerrymandering in Gill v Whitford in 2018, Roberts shut down the inquiry with the aplomb of Nigel Bruce as Dr. Watson in the old Sherlock Holmes movies by saying, “You’re taking these issues away from democracy and you’re throwing them into the courts pursuant to, and it may be simply my educational background, but [what] I can only describe as sociological gobbledygook.” Voting rights advocate Paul Smith vainly protested that the math “is not complicated.” He was missing the point—it was math, so the Chief, like Cher Horowitz in Clueless, was B-O-R-E-D.
When the Biden administration’s student-debt-relief plan came before the Court in February, Roberts applied the same level of intellectual sophistication in construing the “HEROES Act,” which explicitly empowers the Secretary of Education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs . . . in connection with a war or other military operation or national emergency.” COVID-19 was legally and factually a “national emergency,” and the administration used the statute’s authority to “waive” the obligation of many borrowers to repay their loans.
At oral argument, Roberts chucked textualism and explained that the precise wording of the act was irrelevant: “I think most casual observers would say, if you’re going to give up that much amount of money, if you’re going to affect the obligations of that many Americans on a subject that’s of great controversy, they would think that’s something for Congress to act on.”
I don’t know of survey data about what “most casual observers” would say about applying the HEROES Act, But here’s what I do know, and you could look it up. The Chief Justice of the United States is the head of one of the three branches of government. The Chief Justice receives $298,500 in annual salary. The Chief Justice is the head of the Judicial Conference of the United States and an honorary trustee of the Smithsonian Institution. The Chief Justice, styled “The Honorable” and directly addressed as “Your Honor” or “Mr. Chief Justice,” has a staff of brilliant clerks and counselors to respond to every professional need. The Chief Justice spends his days in a splendid, taxpayer-provided office containing the couch on which John Quincy Adams died.
Supreme Court justices are thus, by definition, not “casual observers” and should not pretend to be. They are empowered legal specialists, nominated by the president and confirmed by the U.S. Senate, who are expected to read a statute the way every lawyer is trained to do—not by asking the guys in the country-club bar, but carefully using the tools of analysis that law schools teach.
In 1939, George Orwell wrote that the prewar years had been “the sort of monstrous harlequinade in which everyone is constantly bounding across the stage in a false nose — Quakers shouting for a bigger army, Communists waving Union Jacks, Winston Churchill posing as a democrat.” Equally monstrous is the spectacle of elite justices pretending to be simple country lawyers, voiding any government policy they pretend not to understand, by which they mean—wink-wink—don’t like. Such cosplay would be funny if it weren’t tearing the nation apart.
