This article is part of HuffPost’s biweekly politics newsletter. Click here to subscribe. The article has been updated to reflect the Supreme Court’s decisions announced Thursday.
The Supreme Court is allegedly the most passive, slowest-moving branch of government. But in a little more than one week’s time, the court has arguably rewritten as much American law as any Congress or presidency in recent memory.
Just consider what the court has done since last Tuesday:
― It has invalidated gun restrictions in states that hold about one-fourth of the population and created a new constitutional standard for firearm restrictions that will make defending other limits (including parts of a new law that President Joe Biden signed last week) even more difficult.
― It has forced publicly funded school voucher programs to include religious establishments and required districts to allow coach-led, post-game prayers on the field, and in the process dispensed with a decades-old legal test designed to prevent official government endorsements of faith.
― It has ended the right to an abortion, effectively allowing the procedure to be illegal or nearly illegal across a broad swath of the country, while also rejecting the constitutional foundation of privacy rights that protect same-sex marriage and use of contraception.
To put things a bit differently, the court has gutted limits on gun possession, severely weakened the wall between church and state, and taken away a right that has existed for nearly 50 years ― reinterpreting the First, Second, Fifth, Ninth and 14th Amendments in the process.
And that was all before Thursday, when it finished the term by preemptively striking down new carbon emissions standards, thereby limiting the Environmental Protection Agency’s ability to slow climate change, on the basis of a principle that could dramatically reduce the government’s power to regulate everything from product safety to health care.
About the only major issue on which the court hasn’t written new doctrine this year is race. And that will likely happen next year, when the justices take up cases that could end affirmative action and eviscerate what’s left of the Voting Rights Act.
How you feel about these changes depends, obviously, on where you come down on issues like abortion, guns and school prayer. But it also depends on what role you think the Supreme Court should play in governing ― and more specifically, when it ought to be making the kind of sweeping changes it just unleashed.
To answer that question, it helps to think about some key episodes in history and how they compare.
In The 1930s and ’40s ― A New Understanding Of Economics
One is the 1930s, when Franklin Roosevelt was trying to get the country through the Great Depression and an aging conservative majority on the Supreme Court was striking down key parts of the New Deal. They’d been ruling that way since the early 20th century, when they were invalidating economic regulations from the Progressive Era ― most famously, in a case called Lochner v. New York that struck down a state limit on the number of hours a baker could work in a week.
The Lochner Court, as it came to be known, believed the right of private parties to make contracts was sacrosanct and interpreted the federal power to regulate commerce in the narrowest possible way. When FDR became president, the conservatives started throwing out elements of his agenda with the same fervor they had struck down reforms from when his distant cousin Teddy was president.
The individual elements of the New Deal weren’t all popular ― or successful. But FDR had deep reservoirs of support with the voters, who were desperate for muscular government action in the face of an unprecedented economic crisis, and that support extended to his anger with the Court, according to Jeff Shesol, a former White House speechwriter and author of “Supreme Power: Franklin Roosevelt v. The Supreme Court.”
“Roosevelt very much had the public on the side, whatever they might have thought about the [National Recovery Act] or whatever they might have thought about the [Agricultural Adjustment Act],” Shesol told HuffPost. “There was a mounting sense of crisis, and that the crisis was being created by the Supreme Court.”
FDR was so frustrated he eventually proposed adding new justices to the Court, in what became known as his “court-packing” plan. Congress rejected the proposal resoundingly, but around the same time ― thanks to a change in sentiment by some justices and later some vacancies on the bench ― the court flipped and began recognizing much greater government authority to regulate the economy.
In doing so, it was updating doctrine in a way that accommodated changing real-world conditions and brought old ideas into line with new public values.
In The 1950s and ’60s ― A New Understanding Of Rights
Something similar was happening in the 1950s and 1960s, when Earl Warren was the chief justice, and the Supreme Court began aggressively interpreting the Bill of Rights and Civil War amendments as providing guarantees of equality and liberty that previous courts had not recognized.
The landmark ruling of that era, Brown v. Board of Education, prohibited racial discrimination in schools and was the first step towards fulfilling the century-old promise of equal protection for people of all races. It also had the support of a majority of voters from the get-go, according to Gallup’s polling.
The revolution in judicial thinking continued into the 1970s, a period that included Roe v. Wade, the decision recognizing a right to abortion. The polling on Roe and abortion more generally has always been complex, but the best evidence suggests most Americans thought then that abortion should be legal at least some of the time, which is what Roe allowed.
“The Supreme Court has not been this out of step with public opinion since the New Deal Court-packing fight in 1937.”
Whatever the specifics of the polling, the later 20th century rulings were another example of the Court rulings tracking broader, society-wide change in values ― in this case, growing recognition of racial minorities and women as deserving of the kind of fair treatment they hadn’t gotten before. And this is how most scholars have long understood the Supreme Court to operate ― by gradually, if haltingly, moving in tandem with changing public expectations.
But the decisions this past week don’t fit that model.
The decision on guns comes at a time when solid, consistent majorities want the government to do more to regulate firearms. The decision on abortion comes amid polling showing that large majorities wanted Roe to stay in place ― and who, if anything, are more supportive of abortion than they were 10 or 20 years ago.
“The Supreme Court has not been this out of step with public opinion since the New Deal Court-packing fight in 1937,” Barry Friedman, a New York University law professor and author of a widely cited book on the subject, told HuffPost this week.
In the 2020s ― An Old Understanding Of The Constitution
Whether that should matter, again, depends on your perspective.
In a key passage of the majority opinion overruling Roe, Justice Samuel Alito wrote that “we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work” ― that the court’s job is to interpret the Constitution’s meaning, based on text and original meaning.
In one sense, that claim is uncontroversial. The whole point of the judiciary’s structure is to let justices interpret the Constitution as they think best, especially when it comes to questions of individual rights, even if that defies what the majority of voters want. That’s why justices (and all federal judges) have lifetime tenures.
But because interpreting the Constitution is so inherently subjective, the choice of justices is supposed to reflect the broader political currents of their eras. This is what was happening in the 1930s and 1940s, and again in the 1950s and 1960s.
“All these cases are designed with a goal of rolling back legal developments that reflected cultural changes, societal changes over the last 50 to 100 years.”
It’s not happening now, for reasons you probably understand already if you read this newsletter.
Five of the six justices who make up the conservative majority are there because of presidents who first got to the White House despite losing the popular vote. The recent ones are products of a Senate where the small-state bias gives conservatives disproportionate power. And that’s to say nothing of the way that the GOP Senate leader, Mitch McConnell of Kentucky, broke with long-standing norms ― blocking President Barack Obama’s final appointment and then rushing through the last one of President Donald Trump’s term.
“This is not business as usual,” Shesol said. “When that pattern is broken because of this act of legislative gamesmanship, and you have an unrepresentative branch of government ― the United States Senate ― confirming an appointment by a president who lost the popular vote, the court doesn’t end up reflecting the values it’s supposed to reflect.”
Change any of those key events ― the presidential elections of 2000 or 2016, the blocking of Obama’s Merrick Garland nomination or confirmation of Trump’s appointment of Amy Coney Barrett ― and the legal landscape looks rather different today. Those state gun laws might still be on the books, the separation of church and state might look like it did before, and Roe v. Wade might remain the law of the land.
“Our political system is rife with dysfunction, by not allowing the majority to have its way,” Friedman said. “And the appointments process is hugely broken, not distributing the ability to fill seats evenly among elected presidents.”
In The Future ― A Court Of Uncertain Legitimacy
If, like Alito and Justice Clarence Thomas and all of their supporters, you think the Constitution’s meaning clearly lines up with these recent rulings ― if you think there’s no right to privacy, and that the Second Amendment includes an individual’s right to carry firearms in public, and that the Constitution doesn’t empower federal agencies to regulate aggressively ― then the political conditions that created today’s conservative majority may not seem especially relevant.
In fact, one way of looking at this string of cases is that they are an effort to tether constitutional law to a much older way of thinking ― one that prevailed when the public thought very differently about, say, the rights of women. “All these cases are designed with a goal of rolling back legal developments that reflected cultural changes, societal changes over the last 50 to 100 years,” Leah Litman, a University of Michigan law professor and co-host of the Strict Scrutiny podcast, told HuffPost earlier this week.
But the Supreme Court’s legitimacy is fragile and relies on the public’s perception that it is fair and roughly in line with its values. Gallup last week found that only one in four Americans have a “great deal” or “quite a lot” of confidence in the Supreme Court, the lowest it had measured in half a century.
That was before the abortion ruling. It’s hard to imagine approval climbing now ― and easy to imagine it sinking even lower.