Supreme Discontent: Part Two

While the Court's regressive decisions have dominated headlines and reshaped American society in troubling ways, intellectual honesty demands acknowledging that the 21st century Supreme Court has also delivered significant liberal victories. Even a predominantly conservative Court occasionally issues rulings that advance progressive values. These moments demonstrate the complex and sometimes contradictory nature of constitutional interpretation, even on a Court with a clear ideological majority.

A consequential liberal victory came in National Federation of Independent Business v. Sebelius (2012), when Chief Justice Roberts shocked conservatives by joining the liberal justices to uphold the Affordable Care Act's individual mandate as a constitutional exercise of Congress's taxing power. This stunning decision preserved healthcare coverage for millions of Americans and represented a surprising break from conservative orthodoxy.

Appointed by George W. Bush and typically a reliable conservative vote, Roberts crafted an opinion that recognized Congress's broad power to address nationwide problems through its taxing authority. Despite intense political pressure and expectations that he would strike down President Obama's signature legislation, Roberts demonstrated that constitutional interpretation sometimes transcends naked partisan politics.

Even more remarkable is that the Court defended the ACA twice again in King v. Burwell (2015) and California v. Texas (2021). The conservative majority had three opportunities to dismantle healthcare protections for millions of Americans and instead chose, each time, to preserve the law. This pattern suggests that even conservative justices occasionally recognize the real-world impacts of their decisions and the dangers of judicial overreach.

Obergefell v. Hodges (2015) stands as perhaps the most profound expansion of constitutional rights in the 21st century. Justice Kennedy's 5-4 decision establishing that same-sex couples have a fundamental right to marry was revolutionary in its recognition of evolving understandings of equality and human dignity. The decision recognized the full humanity and equal citizenship of LGBTQ+ Americans after centuries of discrimination.

Kennedy's majority opinion exemplifies how the Constitution must be interpreted as a living document responsive to changing social values. "The nature of injustice is that we may not always see it in our own times," Kennedy wrote, acknowledging that constitutional understanding must evolve as society's moral perception emerges. This approach is the direct opposite of originalism and demonstrates how the Court can keep constitutional principles alive and relevant.

The decision came after a series of progressive rulings on LGBTQ+ rights, including Lawrence v. Texas (2003), which struck down sodomy laws, and United States v. Windsor (2013), which invalidated part of the Defense of Marriage Act. Together, these decisions represent a dramatic arc toward equality that defies simple ideological categorization.

In one of the most unexpected liberal victories, Bostock v. Clayton County (2020) saw Justice Gorsuch—a Trump appointee and self-proclaimed textualist—author a 6-3 opinion extending Title VII's protections against workplace discrimination to cover LGBTQ+ employees. This landmark ruling demonstrated how even ostensibly conservative interpretive methods can yield progressive outcomes when applied consistently.

Gorsuch's opinion showed textualism at its best, focusing on the literal meaning of "discrimination based on sex" rather than the subjective intent of legislators who passed the Civil Rights Act in 1964. His approach revealed that sometimes faithful application of conservative judicial philosophy can align with progressive values—a reminder that constitutional interpretation isn't always predictable or purely partisan.

Department of Homeland Security v. Regents of the University of California (2020) delivered another surprising win when the Court, in a 5-4 decision authored by Chief Justice Roberts, temporarily preserved the DACA program protecting undocumented immigrants brought to the US as children. While not ruling on DACA's underlying legality, the Court found that the Trump administration's attempted termination of the program was procedurally flawed.

This decision reflected judicial restraint of a different kind—ensuring that even when exercising vast authority, the Executive Branch must follow proper administrative procedures and provide reasoned explanations for its actions. The ruling protected hundreds of thousands of young immigrants from deportation and demonstrated that procedural safeguards can sometimes advance substantive justice.

While the Roberts Court has generally weakened voting rights protections, there have been important exceptions. In Cooper v. Harris (2017), the Court struck down two North Carolina congressional districts as unconstitutional racial gerrymanders in a surprising 5-4 decision. Even more surprisingly, Justice Thomas joined the liberal justices in finding that race had been improperly used in drawing district lines.

Similarly, in Department of Commerce v. New York (2019), Roberts again joined the liberal justices to reject the Trump administration's attempt to add a citizenship question to the census, finding that the administration's rationale was contrived. These decisions show that even on highly politicized issues like voting and representation, the Court occasionally checks partisan overreach.

While the Court has often privileged Christian religious expression, it has sometimes protected religious minorities as well. In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores (2015), the Court ruled 8-1 that employers cannot discriminate against job applicants based on religious practices that might require accommodation, protecting a Muslim woman who wore a headscarf.

This more inclusive approach to religious liberty demonstrates that constitutional protections can extend beyond the majority faith, offering hope that religious freedom jurisprudence might eventually become more balanced and protective of diverse beliefs.

These liberal victories reveal the complex, non-linear nature of constitutional interpretation. Even on a conservative-dominated Court, progress sometimes breaks through. Individual justices occasionally transcend ideological expectations, precedents evolve in unexpected directions, and constitutional principles adapt to changing social realities.

These moments of progressive jurisprudence don't negate the Court's overall regressive trajectory, but they do remind us that constitutional interpretation is not merely the mechanical application of ideology but involves human judgment, historical context, and occasionally, moral evolution. They offer hope that even in an era of regression, the Constitution remains a potentially vibrant and dynamic document.

Despite these important liberal victories, the dominant pattern of the 21st century Court reveals a troubling regression in constitutional interpretation as we saw in Part One. The decisions in Heller, Citizens United, and Dobbs expose the fundamental fraud of conservative "originalism." This Court isn't practicing judicial restraint—it's engaging in radical judicial activism while cloaking itself in the language of tradition and textualism. Their hypocrisy isn't just intellectually dishonest; it's destructive to American democracy.

As we have shown, "originalism" and "textualism" are little more than rhetorical smokescreens for imposing conservative policy preferences. The justices who authored these transformative decisions—Scalia, Kennedy, and Alito—claim devotion to constitutional text and original meaning. But their actual practice reveals the hollow core of these claims.

We saw that in Heller, Scalia performed interpretive gymnastics to detach the Second Amendment from its militia context. In Citizens United, Kennedy invented a doctrine with no textual basis whatsoever. In Dobbs, Alito cherry-picked historical evidence while minimizing centuries of common law. This is not some consistent interpretation based upon some guiding principle, Rather, it is results-oriented manipulation dressed in judicial language.

These decisions reveal a Court willing to bend, twist, or abandon its proclaimed principles whenever they conflict with conservative policy goals. If the text doesn't support your preferred outcome? Just ignore the inconvenient parts. If history contradicts your position? Select the historical evidence that fits your narrative. If precedent stands in your way? Declare it "egregiously wrong" and overturn it.

This conservative Court is attempting to disconnect the Constitution from contemporary American life in many ways. The document our Founders created was designed to be flexible and adaptable, capable of guiding a nation through centuries of change. But the Court's regressive interpretations are nailing it to some past and fading value system.

The danger lies in the attempt to force American law back to the 1950s, a time when when pollution was rampant, secularism was often condemned, poverty and disenfranchisement were constitutionally enabled. This Court is interpreting the Constitution in ways that favor Christian values over secular ones, state control over individual autonomy, and corporate power over democratic equality.

The Court has always been political, but never more nakedly than in recent years. The Republican Senate's blockade of Merrick Garland's nomination for nine months in 2016, followed by their rush to confirm Amy Coney Barrett just weeks before the 2020 election, exposed the raw power politics behind Court appointments.

Mitch McConnell's justification for blocking Garland—that "the American people should have a voice in the selection of their next Supreme Court justice"—was revealed as utterly cynical when he raced to confirm Barrett under almost identical circumstances. Political principle wasn't a matter of consistency; it was a matter of convenience.

The result is this 6-3 conservative majority threatens to halt climate change legislation, undo gay marriage, restrict voting rights, and curtail abortion access. This Court is poised to take America back constitutionally to the 1950's, a retreat that doesn't reflect the overall direction of American society.

The tension between a backward-looking Court and a forward-moving society cannot be sustained indefinitely. As the world continues to evolve, a Court that clings to outdated interpretations will find itself increasingly irrelevant. No matter how many elections regressives win, they cannot "stop the tide of history."

The progressive evolution of American culture into "a future that is radically different from our past" is inevitable. The Court can delay this progress, but it cannot prevent it. A Constitution interpreted to drag America backward will ultimately become an antiquated drag on evolution rather than an instrument that is alive and enabling of the unstoppable future.

The regressive interpretations in Heller, Citizens United, and Dobbs reveal a Court attempting to freeze (or retrofit) American law as the world changes around it. This judicial regression may have democratic backing today, but history suggests that progress, however delayed, eventually prevails. The question is how much damage this Court will do before a liberal or even moderate majority returns to keep the Constitution alive and relevant to our changing world.

The 21st century Supreme Court presents a complex picture that defies simple categorization. The three decisions highlighted in Part One represent significant regression in constitutional rights, while rulings on healthcare, marriage equality, and workplace discrimination demonstrate that progressive breakthroughs remain possible even on a conservative-dominated Court. This jurisprudence reflects the eternal churning of constitutional interpretation throughout American history.

It also speaks highly of many of the Justices themselves, especially those who favor moderation over the culture wars. Remember moderation? Compromise? That used to be the guiding force in American politics before regressives went ballistic. John Roberts strikes me as a moderate type of judge, for example. Clarence Thomas is not that type of judge. He's more regressively robotic.

Taking the long view, we can see that the current conservative ascendancy, while powerful and consequential, is another phase in the cyclical pattern of American judicial development. Just as the liberal Courts of the New Deal and Civil Rights eras eventually gave way to more conservative interpretations, today's regression will ultimately yield to new understandings as social conditions evolve. The pendulum that swung from the liberal Warren Court to the conservative Roberts Court will inevitably swing again.

This cyclical perspective doesn't minimize the real damage caused by regressive decisions. The gun violence abetted by Heller, the political corruption unleashed by Citizens United, and the suffering inflicted by Dobbs have tangible human costs that can't be dismissed as mere historical inevitability. These decisions warrant passionate criticism precisely because they harm vulnerable Americans while chiefly benefiting the powerful.

Yet understanding the historical pattern provides both context and hope. The Constitution has weathered cycles of expansion and contraction throughout American history. It has survived Dred Scott (1857, enslaved people could never be citizens) and Plessy (1896, racially separate but equal), Lochner (1905, employee work conditions and protections) and Korematsu (1944, internment based on race). Its enduring strength lies not in any single Court's interpretation but in its capacity for renewal and reinterpretation as society evolves.

Today's regression represents not an endpoint but another transitional phase, just like the long liberal period of the Court from 1930's through 1970's was transitional and transitory. As society continues moving toward greater inclusivity, equality, and interconnection, constitutional interpretation will eventually follow—whether through personnel changes, doctrinal evolution, or generational shifts in understanding.

I find it helpful to navigate this conservative moment by taking the long view. As things turn out, regression is the overarching theme today. Yet history shows that the Constitution is bigger than any single Court or era. It has survived both liberal and conservative interpretive cycles throughout American history, and it will survive this one too. The "unstoppable future" is coming, even if the path forward includes temporary retreats along the way. The judicial pendulum will swing again, as it always has.

And that's plenty of politics to chew on, for now.

(Assisted by Claude.)