Not all Conservative jurists are conservative on the bench.
That discordant capitalization is, of course, intentional. I use the capital-C “Conservative” here to refer to ideological orientation: small government, lower taxes, strong national defense, and the rest. (Of course, traditional notions of political Conservatism have been subjugated momentarily by “Whatever Donald Trump Says”; witness, for example, the onetime party of law-and-order as it lashes out against law enforcement and calls for pardons of January 6 rioters.) And, herein, we’ll use the lower-case “conservative” in the judicial sense: careful case selection, insistence on compliance with procedural formalities, disposition on the narrowest possible grounds, minimalistic intrusion into other branches of government and the private affairs of the citizenry.
During its 2023 mid-summer Publishing of All the Big Decisions, the Supreme Court threw out the Biden administration’s student debt relief program, ended race-based affirmative action in college admissions, and allowed a Colorado wedding website designer to discriminate against LGBTQ couples in the name of free speech. These are Conservative ideological outcomes – but the Court used decidedly non-conservative means to get there. (The Court also reached liberal policy outcomes in high-stakes voting rights cases, with cross-ideological majorities.)
Let me make clear before we proceed that this is not about the merits of the Court’s recent rulings. (If I had to opine: I agree with the student debt outcome, am torn on affirmative action, object to the LGBTQ discrimination decision, and agree with the voting rights rulings.) I’m addressing judicial methodology here.
Conspicuous trends emerge from the Court’s recent decisions. The Court has strayed from core tenets of judicial conservatism, first by blowing out “standing” – the fundamental notion that a party must have an actual, concrete stake in a dispute before a court can take the case and rule on it. Standing ordinarily serves as a limiting principle, a gatekeeper that prevents parties without a dog in the fight from presenting “what-ifs” to the courts and seeking forward-looking advisory opinions. Going back centuries, our courts have proudly refused to be bothered with mere thought experiments.
But in the Colorado case, the Court ruled on a hypothetical: what if this web designer who objects to gay marriage might someday refuse to create a website for a gay couple, and then what if that couple sued the designer? No actual customer had actually sued the actual website designer. The Court breezed right past this glaring procedural deficiency by reasoning that, well, it’s probably gonna happen at some point down the line.
Herein lies the problem. You’ve heard the aphorism “bad facts make bad law” (and it’s less-utilized converse about good facts and good law). The point, both ways, is that details can influence or dictate outcomes. Let’s take the Colorado case, for example: Exactly what speech did the web designer refuse to engage in? Who was denied service, and how, and why? What if nobody ever objected or sued the designer at all? Might those facts have had some influence on the ultimate ruling? (The Court similarly adopted a broad view of standing to take on the student debt relief case, even though the plaintiffs – several Republican-led states – suffered only attenuated, secondhand financial losses.)
A truly conservative (again, lower-case “c”) Court would have rejected the Colorado case for sure, and maybe the student debt case. We don’t do theoretical discussions around here. Come back to us when your case is actually a case.
While the Court has fudged standing requirements to help itself to a wider range of cases, it also has ruled with diminished regard for established precedent; this is the second prong of the Court’s new campaign of self-aggrandizement.
Every Supreme Court nominee now goes through the same, familiar dance during Senate confirmation hearings:
Q: Do you believe in upholding precedent?
Q: Do you also believe that, at times, precedent must be reversed?
A: Of course, at times.
Q: So when is it appropriate for the Court to reverse precedent?
A: [Vaguely-legalistic mishmash including made-up phrases like “super-precedent” that really boils down to: whenever five or more of us feel like it.]
Over the past year, we’ve seen the Supreme Court deliver two seismic reversals of precedent: the Court rescinded the constitutional right to abortion in the 2022 Dobbs decision, and now it has ended affirmative action in college admissions. Both had stood for around half a century, and had been reaffirmed by the Court since they arrived. I’m not saying it’s always wrong to reverse precedent; sometimes, it’s absolutely necessary (see, for example, Brown v. Board of Education). But the Court remains rudderless as to when it will abandon established precedent, and why. A conservative approach would call for reversal of longstanding, deeply-entrenched holdings only in the rarest and most extreme scenarios, or only when some specific circumstance has demonstrably changed. Instead, the current Court has given us two whoppers, both justified essentially with: the time has come.
Beyond the Supreme Court, we saw a remarkable decision from a federal district court judge in Louisiana. Chief Judge Terry Doughty – who modestly quotes (and implicitly compares himself to) George Orwell, George Washington, Thomas Jefferson, and Benjamin Franklin – found that recent presidential administrations (including both Trump and Biden, but almost entirely Biden) had “coerced” and “colluded with” social media giants to regulate content relating to Covid, the 2020 election, Hunter Biden, and other politically sensitive topics. The judge issued a sweeping, nationwide preliminary injunction that prohibits essentially the entire federal Executive Branch from communicating with any of the major social media companies about – well, something. The judge purports to delimit his ruling with the unhelpful and circular non-clarification that it applies only to “protected free speech” – no kidding, Your Honor – but not to certain speech relating to national security and the like. Yet Judge Doughty offers no reliable way to determine what does or does not qualify under either heading.
My problem with this ruling is not necessarily on the merits, though it’s a little tough to discern exactly what the merits are given the breadth of the decision. The judge cites some compelling examples of the Biden administration using heavy-handed methods to try to influence the content of online postings. (The decision also provides examples where the social media companies did whatever they wanted, even if contrary to the administration’s wishes, freely and without consequence.)
My objection is that the ruling purports to micromanage on a forward-rolling basis all communications between a massive swath of our government and essentially the entire internet. Who on earth is going to monitor this ruling, or enforce it? Anytime a mid-level supervisor at the CDC wants to make the case to Twitter that some post contains disinformation, do the parties have to run it by the judge in Louisiana first? If a DHS deputy secretary spots a Facebook post that might promote extremist violence, does she need to call into chambers and run it by Judge Doughty before she takes action? Or must any such communications – dozens or hundreds per day, potentially – go to the judge for some kind of after-action review? Shall we set up a brand new administrative body and interpose it between the federal government and all of social media?
The judge provides the parties with an indecipherable standard, and no practical plan on how to make it work. Note also that the social media companies themselves – the supposed victims here – didn’t bring this case; two Republican state AGs did, and that was good enough for the court. Take whichever side of the merits debate you prefer here, but this is not a judicially conservative ruling.
Maybe this is a problem of nomenclature. “Conservatism” and “conservatism” are the same word, but they don’t mean the same thing, and they no longer go hand-in-hand. To the contrary, some of our most powerful Conservative jurists have recently taken on a decidedly activist bent.
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