For SCOTUS watchers, judicial restraint has left the building
Experts see ideological forces behind the majority’s rush to recalibrate constitutional law.
The conservative majority of the Supreme Court is making broad changes to American law on a tight timeline in moves that are giving the public, and even several justices, pause.
“I would call the majority restless,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in a phone interview. “It’s not only wanting to have a very firm conservative stamp on the court, but it is impatient and won’t wait for the right cases to do that and won’t use an incremental approach.”
Just a week after the court threw out New York’s concealed-carry restrictions last month, it voted 6-3 to limit the Environmental Protection Agency’s ability to regulate pollutants that contribute to climate change. While doing so, the majority made it a point to endorse a controversial doctrine that hamstrings the authority of the administrative state.
Experts were critical of this EPA decision both because of its breadth and because of its basis on an outdated regulation the government has no intention of using again.
“This court’s majority is making fundamental changes to the law as fast and broadly as it can,” said Richard Bernstein, an appellate lawyer who filed an amici brief before the court in a challenge to New York’s concealed carry regulations.
Bernstein continued: “The repeated haste and broad reach of this court’s majority is not how conservatives act. It is, unfortunately, characteristic of how ideologues pursuing radical changes act when they attain power.”
Within the court itself, the majority’s eagerness is appearing to raise alarms.
“The Court’s docket is discretionary, and because no one is now subject to the Clean Power Plan’s terms, there was no reason to reach out to decide this case,” Justice Elena Kagan wrote in dissent to the EPA ruling.
Kagan noted that, not only was there no in-use regulation for the court to rule on in the case, but the government was set to release an updated regulation in just weeks.
“The Court today issues what is really an advisory opinion on the proper scope of the new rule EPA is considering,” Kagan wrote. “That new rule will be subject anyway to immediate, pre-enforcement judicial review. But this Court could not wait — even to see what the new rule says — to constrain EPA’s efforts to address climate change.”
The EPA case wasn’t a fluke. Chief Justice John Roberts admonished the majority in the court’s blockbuster Mississippi abortion case for a similar inclination. Roberts said the court wasn’t following the “simple yet fundamental principle of judicial restraint.” This principle argues in favor of ruling only on what is needed to decide a case.
“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” Roberts wrote.
This criticism from Roberts was related to the majority’s ruling overturning the court’s landmark precedent in Roe v. Wade. When the state initially petitioned the justices, they made a point to not challenge Roe directly. Mississippi only urged the justices to throw away the precedent after the ascension to the court of Justice Amy Coney Barrett. Roberts called it shortsighted for the court to reward such a gambit.
“The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us,” Roberts wrote.
While experts say the conservative majority’s rulings were for the most part predictable, the speed at which they’ve tackled a broad swath of American law was surprising. Barring unforeseen circumstances, the conservatives will have the majority on the court for decades. The majority’s willingness to turn a blind eye to judicial restraint in this way, experts say, demonstrates the justices’ arrogance.
“There’s a certain arrogance on the court,” Gostin said. “They’re doing it because they genuinely believe that prior Supreme Court rulings were wrong and they are right.”
The expectation meanwhile that these rulings were coming is also a problem.
“It’s not like in any of these high-profile cases there was ever a shadow of a doubt about what the court would do, and that’s not a good place to be because it makes you look very ideological,” Gostin said.