No, the Roberts Court Is Not Moderating

The Supreme Court’s changed gears this year. Last year it went gang-busters on abortion, gun rights, religion, and more. It cast decades of established precedent to the wind, stripping many of what had seemed inalienable rights, and exposing many others to new harms. The Court Term that closed this June again wrapped up with important decisions—this time on affirmative action, student debt relief, and religious compliance with the civil rights law. None, however, depended on sudden, large jumps in the law. A more cautious, more legalistic tribunal seemed at work. The Justices seemed in first gear, not turbo mode.

This difference, however, matters perhaps less than first appearances suggest. The basic vector of the Roberts Court remains unchanged. And the basic problem of the Court flexing enormous discretion interpreting statutes and constitutional text to reach profoundly counter-democratic outcomes still holds true.

Take the Court’s decisions on affirmative action and student debt. Both will of course reverberate widely, closing pathways for upward mobility and increasing the transmission of inequality across generations. But both also could claim some basis in precedent: The affirmative action case, for example, drew on ideas that earlier 2003 opinions involving the University of Michigan. The Chief Justice could, not entirely without cause, chide his dissenting colleagues for ignoring prior decisions. The student debt case drew on a decision last year narrowing the federal government’s power to address climate change. That 2022 decision broke dramatically with past law by minting a new rule against federal regulations that address “major questions.” The 2023 case just applied that “major question” doctrine—and in that sense was less destabilizing.

Similarly, the Court’s two decisions on religious people’s rights to resist workplace rules and civil rights laws are written narrowly. Unlike last year’s case on Second Amendment rights, they do not destabilize dramatically existing law. Also, their rulings are relatively narrowly drawn to the specific facts of the parties dispute.

Yet, the underlying partisan tilt of the Court remains unmistakable. While they rebuffed Republican efforts to get federal and state laws preserving democratic competition, the Justices advanced policy goals on affirmative action, religious rights to resist general law, and debt relief that the Republican caucus cannot plausibly enact via democratic methods. Justifying the millions expended on confirmation battles by right-of-center groups and individuals, the Roberts Court continues to provide an end-running path for scoring Republican policies without majority support or a plausible pathway into law.

Moreover, several of the Court’s important opinions leave it open for new litigants to bring new challenges extending that partisan drift in the law. Justice Kavanaugh has been particularly candid in this regard. In both the decision on the Voting Rights Act and an Equal Protection challenge to laws protecting Native American children, he added separate concurrences picking out how further challenges can be brought. No doubt the hints will not go unnoticed.

Similarly, while both cases involving the right of religious people to resist general rules seem narrowly drawn, both will likely contain multitudes in the end. A seemingly narrow decision requiring employers to accommodate religious beliefs, for instance, is likely to spawn a wide range of new efforts to “impose” religious beliefs “through the economy.”

As a result, what might seem like a return to moderation is merely a stalling tactic. The same results will be reached—just give it five or ten years. For a bench stocked with youngish conservatives, the difference in timing may not be all that important in the end.

At first, it might seem that this more deliberative, careful Court should generally be welcome: How could one object to the prospect that Court will proceed with greater caution and greater respect for the law?

But the Court’s change is more ambiguous than first seems. For one thing, it is clear that doctrines such as the “major question” rule already give the Justices wide latitude to inject their policy preferences into the law. Similarly, the Court’s reading of speech and religious liberty interests has considerable room for judicial policy-making. Once the law contains a license for judges to insert their policy views into the law—say, by calling some things major questions, while ignoring others—the stability and predictability of the law will be only skin deep. If the law is what the Justices say, then the only think that’s predictable is that it will be the Justices that have the last word.

More importantly, there is reason for hesitation in welcoming the effects of this slowdown. Commentators have rushed to ascribe the newfound moderation of the Roberts Court to the Justices’ sensitivity to public opinion, which has increasingly soured of late. This seems plausible. But the Justices are not trimming their sails durably, or departing from the Republican policy agenda. Nothing in this year’s opinions, moreover, abandons the enormous policy discretion enjoyed by the Justices when they interpret statutes or the Constitution. The Court, in other words, remains a profoundly counter-democratic body. In substance, nothing has changed: The problem of an unelected, national policy-making branch wielding vast power under the veil of law remains as it was.

Worse, it is cynical but plausible to note that the Court’s new strategy is likely to make big changes to the law less obvious, by spreading them out over time. Hence, they are less likely to attract public opprobrium. And the Court’s policy agenda is less likely to face democratic backlash. The Court’s unbridled discretion will therefore be less tempered by respect for the public’s values and views. It will, all else being equal, to able to go further in casting its policy judgments as law.

Perversely, the consequence of moving slowly may well be to enable even more radical policy change than a less tempered Court could realize. After all, small steps are less likely to catalyze resistance than large leaps. The law could end up farther from the average voter, and closer fit to one party’s talking points.

If the Justices are hitting the brakes, therefore, it may well be that ultimate effect is exactly the opposite of what it might seem: A more powerful Court, less respectful of democracy, driving the policy further and further to the right.