With Roe Revisited, Will SCOTUS Blink Once Again?

AMAC Exclusive – By Seamus Brennan

Since the birth of the modern conservative legal movement in the 1970s, conservatives have suffered a series of bitter disappointments from the federal bench. Time and again, self-branded “originalist” jurists appointed by Republican presidents have “gone native,” succumbing to pressure from left-wing voices in the media and liberal culture and ultimately issuing liberal rulings that are far out of line with both their credentials and an originalist understanding of the Constitution. Now, as the High Court and its newly minted 6-3 Republican-appointed majority prepare to decide major cases on abortion rights, the Second Amendment, religious freedom, and other hot-button issues, many conservatives are anxiously waiting to see if this pattern will continue, or if this might finally be the term where conservative justices refuse to blink.

The examples of conservatives becoming more liberal after reaching the Supreme Court are perhaps too many to count. Former Justices Sandra Day O’Connor and Anthony Kennedy, both appointed by President Ronald Reagan, were two of the deciding votes in the contentious Planned Parenthood v. Casey decision, which to this day upholds Roe v. Wade and the expansive legal right to abortion in the United States. Justice David Souter, who was appointed by President George H. W. Bush for his perceived ability to “interpret the Constitution” rather than “legislate from the federal bench,” also signed onto the majority and co-authored the plurality opinion with O’Connor and Kennedy.

Yet, Casey has long been considered a notorious example of precisely the sort of “legislating from the bench” that figures like Reagan and Bush spoke out so vehemently against. As legal scholar Robert George wrote for First Things magazine last fall, Casey is “grossly unfaithful to the Constitution,” for which it is, along with Roe, “rivaled only by” Dred Scott v. Sandford and Plessy v. Ferguson—which barred black Americans from citizenship and approved state-sanctioned segregation, respectively.

Kennedy also cast the deciding vote in the controversial 2015 case Obergefell v. Hodges, which essentially invented out of whole cloth a nonexistent constitutional right to same-sex marriage that, as Justice Antonin Scalia was quick to note in his fiery dissent, relied upon “the mystical aphorisms of the fortune cookie.”

This pattern of disappointments from Republican-appointed justices perhaps reached its pinnacle with President George W. Bush’s appointment of Chief Justice John Roberts, who famously pledged during his confirmation hearings that he would “decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”

Yet, as conservatives are quick to point out, many of Roberts’s decisions are not “based on the record, according to the rule of law,” but rather on his perception of the political temperature and his desire to uphold the so-called “institutional legitimacy” of the Court. For Roberts, this usually means voting with the Court’s liberal bloc—even when doing so violates his stated interpretation of the law.

Roberts’s elevation of the Court’s popularity over the written words of the Constitution became most apparent in the 2012 decision National Federation of Independent Business v. Sebelius, which, in a 5-4 vote, upheld the Affordable Care Act’s individual mandate to buy health insurance. The individual mandate, which Roberts used a series of linguistic gymnastics to configure into a “tax” in order to uphold the Affordable Care Act (which otherwise would have been doomed), is widely recognized to be flagrantly unconstitutional. As constitutional scholar Ilya Shapiro wrote, Roberts “sent Obamacare flying from the constitutional frying pan into the constitutional fire.”

Even President Donald Trump’s three Supreme Court appointees have at times failed to live up to conservatives’ expectations that they would rule on cases independently of political pressure from the left. Justice Neil Gorsuch, for instance, infamously authored the outlandish Bostock v. Clayton County decision, in which he bizarrely wrote “sexual orientation” and “gender identity” into the Civil Rights Act of 1964—even though the law itself made no mention of such characteristics.

Justice Brett Kavanaugh has also occasionally fallen into this trap—even after President Trump and Senate Republicans stood firmly by his side amidst one of the most disgraceful Supreme Court confirmation battles in U.S. history, in which Democrats viciously attempted to kill his nomination by smearing him as an alcoholic serial rapist.

In January, Kavanaugh sided with the Court’s three-member liberal bloc and Chief Justice Roberts to uphold COVID-19 vaccine mandates for healthcare workers, which drew the ire of the very people who fought tooth and nail to ensure his confirmation just a few years prior. Some conservatives have also expressed frustration at Kavanaugh’s and other justices’ failures to grant review to cases that would have evaluated complaints from several state Attorneys General following the 2020 presidential election.

While the left is almost never surprised by the voting records of Democrat-appointed Supreme Court justices (Stephen Breyer, Sonia Sotomayor, and Elena Kagan vote almost invariably in lockstep with Democrats’ policy preferences), it has become increasingly clear that the media’s pressure campaign against Republican-appointed justices has sometimes been successful.

On the current Court, the consistent exceptions to this rule are Justices Clarence Thomas and Samuel Alito, who have withstood the ruthless criticism and character assassination attempts from the left. Evidently, other Republican-appointed justices do not wish to subject themselves to the same treatment.

The American people are not the only ones frustrated with this situation. In fact, Justices Thomas, Alito, and even Gorsuch have expressed concerns of their own directly to their colleagues on the bench. In a 2021 dissent, this trio—led by Alito—lamented the Court’s “unwilling[ness]” to bear “criticism” from the public. And in a separate concurrence on a high-profile religious liberty ruling, in which the Court failed to overturn a controversial and likely unconstitutional precedent, the same three justices—this time led by Gorsuch—once again sounded the alarm: “These cases will keep coming until the Court musters the fortitude to supply an answer,” the concurrence read. “Respectfully, it should have done so today.”

As the Court gears up for the end of its term and prepares to release what could be some of the most far-reaching legal decisions in decades, Americans who care about the rule of law, judicial independence, and withstanding the left’s tactics of intimidation should hope the Court can finally, in the words of Justice Gorsuch, muster some fortitude.