Why the High Court Doesn’t Have a Conservative Majority

Media gurus are interpreting recent Supreme Court decisions as products of a “conservative majority.” But the decisions themselves suggest that the majority of the justices are not conservatives.

Conservatives understand that institutions develop gradually and drastic changes are dangerous. Extreme examples come when efforts to improve government are made by violent revolution or by war.

In the words of a useful cliche, revolutionaries and crusaders throw the baby out with the bathwater.

But even major changes introduced by current leaders can produce disastrous results if undertaken hastily. Conservatives understand this point, too.

Anglo-American jurisprudence has traditionally been based on a conservative principle: stare decisis — “let the decision stand.” This means that similar cases should be decided similarly.

Court decisions therefore constitute precedents to be respected in deciding later cases.

English Common Law, ancestor of American law, developed gradually case by case over centuries. It provides legal stability enabling people to know their legal rights and duties.

Such understanding is impossible if law is always fluctuating.

Statutes enacted by a legislature take precedence over Common Law traditions. But our courts have been basically conservative institutions, tipping decisions toward consistency and predictability whenever possible.

To put it mildly, respect for stare decisis does not appear evident in recent Supreme Court decisions. The Dobbs decision, overturning a 50-year-old precedent protecting first trimester abortions, comes immediately to mind.

More recently, the Court repudiated the “Chevron” doctrine. That doctrine held that courts should “defer” to an administrative agency’s reasonable interpretation of legislation authorizing it to make regulations.

Courts will now be free to disagree with agencies’ interpretations whenever they feel like it.

Administrative agencies are staffed by experts in the affairs they are regulating, which are often highly technical. Judges and juries, unfortunately, are not experts in any of these various specialties and are therefore in a poor position to judge wisely.

Chevron deference was a important part of modern administrative law. Overturning it complicates the work of the federal agencies that protect us from dangerous medicines, regulate airline safety, administer anti-trust law, protect worker safety and provide many other vital services.

As Steven Vladeck, University of Texas Law School professor, put it, this court decision “destabilizes administrative law.” Conservatives would not do that!

A third major decision brushing off precedent held that presidents have total immunity from criminal prosecution for actions taken in their core official capacity. Interestingly, no such legal question had ever arisen about the administrations of the first 44 presidents.

And as historian Heather Cox Richardson put it, our Founding Fathers — deadly afraid of unrestrained executive power — would have been aghast at such a decision.

Do the justices remember George III?

Akhil Reed Amar, a leading constitutional scholar at the Yale Law School, goes even further than Richardson: “Essentially, the Court in Trump v. United States is declaring the Constitution itself unconstitutional. Instead of properly starting with the Constitution’s text and structure, the Court has ended up repealing them.”

It was indeed a strange decision for justices styling themselves originalists and textualists, since the only immunity mentioned in the Constitution was for members of Congress.

The fact that the Constitution granted some immunity to senators and representatives but not to the president suggests the difference was intentional, according to the legal principle expressio unius est exclusio alterius.

These recent decisions suggest that stare decisis is no longer a governing principle in American law. This is not a precedent that conservative justices would have set.

Some members of the current Court may not even be acting like judges at all. Too often, it looks as if they have decided first how they want cases to turn out, then invented new constitutional principles — even if they conflict with precedent and the words and spirit of the Constitution — to justify their decisions.

We clearly need to stop claiming that today’s Supreme Court is controlled by a conservative majority. Such claims could give conservatives an undeserved bad name.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966 and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, “Thinking About Politics: American Government in Associational Perspective,” was published in 1981. His most recent book is “The Case of the Racist Choir Conductor: Struggling With America’s Original Sin.” His columns have appeared in newspapers in Michigan, Oregon and other states. Read more of his reports — Click Here Now.