The Conservative Supreme Court Takes On The Right

For instance, Supreme Court spouses Ginni Thomas and Martha Alito both acted in ways that reflected poorly on the Court, but neither was technically part of the Court. Justice Thomas’s extensive use of private jets and yachts may not have been a violation of the Court’s code of conduct, but his actions also undermined the credibility of the Court. That’s especially true of his alleged failure to report all such trips.

There is probably more than a little truth to the charge that the left is playing up these incidents because they are fearful of how the Supreme Court with its three Trump-appointed justices will rule. The irony is that the current Court has a habit of slapping down overreaching legal theories by right-wing petitioners.

The decisions handed down in the last few weeks provide good examples. One keenly watched case was United States v. Rahimi in which the Court held that some gun controls were constitutional. The 8-1 decision with only Thomas dissenting walked back some of the Court’s recent precedent from New York State Rifle and Pistol Association v. Bruen, which established the controversial text, history, and tradition test. The US Fifth Circuit had held that Rahimi could not be prohibited from owning a gun under a domestic violence restraining order. The Court reversed that ruling.

Writing for the majority, Chief Justice Roberts explained, “Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber. As we explained in Heller, for example, the reach of the Second Amendment is not limited only to those arms that were in existence at the founding. Rather, it ‘extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.’ By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.”

Roberts leaves the door open to modern regulation of modern weapons. That might include red flag laws, limits on magazine capacity, or possibly even a categorical ban on “assault rifles.” We don’t know where the boundaries of the regulation are, that will be for subsequent cases to define, but we do know that the unlimited (“I can individually own a surface-to-air missile or nuclear weapon under the Second Amendment”) point of view of some gun rights activists is going to be a non-starter even under the current conservative Court.

The right took another legal defeat recently as well. The Court unanimously passed up a chance to ban the popular abortion drug mifepristone in Food and Drug Administration v. Alliance For Hippocratic Medicine, a decision that was authored by Trump-appointee Brett Kavanaugh. The decision hinged on standing, but the conservative justices could have found a way to give standing to the group of doctors who brought the suit. This case should make those concerned that the conservative Court would backstop right-wing fringe elements who want to ban birth control breathe a bit easier.

These recent cases remind me of another defeat for the wingnuts from last year. Almost exactly a year ago, I wrote about Moore v. Harper, a North Carolina case that tested the theory that the Elections Clause of the Constitution gives state legislatures the right to set election law with almost no oversight. In what can be seen as a warning shot to states that might consider ways to overturn or toss out election results that they didn’t like, the Supreme Court “nuked [the independent state legislature theory] from orbit” as David French put it at the time.

Along the same lines, the Court with its Trump-heavy staffing declined to intervene in six of eight election cases in the runup to the 2020 elections. The same Court also rejected appeals by the Trump campaign that would have helped The Former Guy steal the election.

Like the current Court or not, this is not a Supreme Court that is beholden to Donald Trump or the MAGA faction. In fact, the Court’s conservatives seem to be traditional conservatives and constitutionalists, not radicals of any shape or form.

Looking under the hood of the Court’s decisions, we find that the conservative majority is often at odds with itself. The conservative justices often join the liberal justices to form temporary coalitions. Quite a few cases are unanimous or nearly so and even narrowly-divided decisions don’t necessarily line up along the ideological lines that are to be expected.

A lot of the dissonance in the conservative majority seems to have to do with differences over how to interpret the law under the broad wing of originalism. Some justices lean towards textualism while others favor trying to discern original intent. Both approaches are valid but can yield different results.

Personally, I think most of these cases were decided correctly, the same as I believe that Dobbs was decided correctly. I wouldn’t say the Court is batting a thousand, however. If I had to pick a recent case that was decided incorrectly, I’d single out Trump v. Anderson, the presidential eligibility case.

As I wrote at the time, “I think the decision that states can’t unilaterally ban a federal candidate from the ballot is sensible even if Trump and the other insurrectionists meet the grounds for doing so. I do agree, however, that the Court went too far in mandating congressional action to invoke Section 3 [of the 14th Amendment].”

Nevertheless, I accepted the Court’s decision when I disagreed with the outcome just as I did when I sided with the majority. That’s what we do in a constitutional republic when we value the rule of law.

The independent-mindedness of the Supreme Court gives me hope for two upcoming decisions that have yet to drop. Those two cases are Trump v. United States, The Former Guy’s claim of “total immunity” from prosecution, and United States v. Fischer, which challenges the obstruction convictions of the January 6 insurrectionists.

Of the two cases, I am more certain of the outcome in Trump v. United States. I am absolutely certain that the Court will not grant Trump absolute immunity. This will probably be a unanimous decision, although if anyone dissents, I would expect it to be Thomas. The only question is where they will draw the line.

I’ve seen a lot of people complain about how long the Court is taking to decide this case, but it’s a thorny question that will reverberate far beyond Donald Trump. The president must have some immunity for official acts (ordering an attack on an unfriendly nation or terrorist group would be illegal for a private citizen, for example), but presidents need to be held accountable for unethical and illegal abuses of power. The final decision is probably going to include a legal test that will apply to future presidents, not just the felon-in-chief who brought the case.

United States v. Fischer is less certain. Joseph Fischer was a rioter on January 6 who attacked police and trespassed in the Capitol. Among the charges for which he was convicted, there was one count of obstructing an official proceeding of Congress under the Sarbanes-Oxley Act, which was passed as a response to the Enron scandal. Fischer’s conviction for obstruction was dismissed by a federal district judge (his other convictions were not dismissed) and then reinstated by the DC Circuit Court of Appeals.

Among the questions the Court must address are whether Sarbanes-Oxley is broad enough to cover riotous behavior in addition to white-collar crime and whether the attack on Congress was committed with “corrupt intent.” The law in question covers “whoever corruptly alters, destroys, mutilates or conceals a record, document or other object… or otherwise obstructs, influences or impedes any official proceeding.” The phrase “otherwise obstructs” is a primary focus of the case, and even though those two words do a lot of work, it seems logical that if destroying a record to obstruct Congress is illegal, a physical assault on the Capitol should be as well.

If the past eight years have taught us anything, it should be that our laws and precedents are inadequate to deal with attempts to steal elections and coup attempts aimed at impeding the peaceful transition of power. As I’ve said before, Donald Trump is a walking, talking, living, breathing constitutional crisis. Trump has secured his place in history as the first former president to be convicted of a felony, and his infamy will live on in the annals of legal history and precedent for his role in these January 6 cases.

In my view, this Supreme Court, with its focus on originalism and textualism, is well-suited to address such weighty questions. I may not agree in total with their answers, but I expect them to be well-reasoned. And I don’t expect them to follow the Republican party line.

There’s also a lesson in all this. In his first term, for the most part, Trump appointed good judges who were recommended by the Federalist Society and respected in their roles. Those constructionist jurists did not back Trump when he made his power play.

If Donald Trump is returned to power, he won’t make the mistake of appointing principled judges to the Supreme Court or lower courts. He will appoint loyalists and MAGA firebrands. And I haven’t seen anything from the Republican Party to suggest that they would resist Trump’s efforts to pack the courts with cronies.

The judicial branch deserves a lot of credit for preserving American democracy in 2020 and 2021. If Donald Trump is returned to power, we run a real risk of having that firewall infected with the sort of Trumpists that the left thinks already make up the Court.