Roberts Court, Democracy, and Originalism: The Moral Vision Behind the Supreme Court’s Conservative Majority

As Donald Trump remakes American politics and the global hegemonic order, the unrelenting criticism against him has overflowed to those seen as complicit in his regime. Such targets range from the Republicans in Congress to rapper Nicki Minaj, but the most frequent collateral target is the U.S. Supreme Court. Lawyers, activists, and progressive critics have accused the Roberts bench of sacrificing a legacy of impartial justice for political loyalty and partisan self-interest. But what if, despite such attacks, the Roberts Court is in fact a bench of principle — albeit perhaps principles that challenge progressive assumptions? Might there be a moral method to the madness of the 6–3 conservative majority?

Such a claim faces strong headwinds. The critiques leveled against the Supreme Court read as a parade of horribles: They claim the Court is bowing to Trump’s will and failing to block his assault on American democracy and constitutionalism. They call it a collaborator, proactively facilitating Trump’s hijacking of government and consolidation of power. The result is the reversal of the Court’s role as a force for social progressive and moral justice — a mantle it proudly wore during much of the 20th century, exemplified by the Warren Court’s landmark decisions advancing equality and personal rights. Conversely, the Roberts Court is accused of a series of decisions that permit or proactively endorse autocratic executive power, plutocratic corruption, and discrimination. In the eyes of its critics — and they are legion — the long-vaunted institution has lost its once-glittering legitimacy.

JE

About the Author

Jacob Eisler

Jacob Eisler is the James Edmund and Margaret Elizabeth Hennessey Corry Professor at Florida State University College of Law.

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As Donald Trump remakes American politics and the global hegemonic order, the unrelenting criticism against him has overflowed to those seen as complicit in his regime. Such targets range from the Republicans in Congress to rapper Nicki Minaj, but the most frequent collateral target is the U.S. Supreme Court. Lawyers, activists, and progressive critics have accused the Roberts bench of sacrificing a legacy of impartial justice for political loyalty and partisan self-interest. But what if, despite such attacks, the Roberts Court is in fact a bench of principle — albeit perhaps principles that challenge progressive assumptions? Might there be a moral method to the madness of the 6–3 conservative majority?

Such a claim faces strong headwinds. The critiques leveled against the Supreme Court read as a parade of horribles: They claim the Court is bowing to Trump’s will and failing to block his assault on American democracy and constitutionalism. They call it a collaborator, proactively facilitating Trump’s hijacking of government and consolidation of power. The result is the reversal of the Court’s role as a force for social progressive and moral justice — a mantle it proudly wore during much of the 20th century, exemplified by the Warren Court’s landmark decisions advancing equality and personal rights. Conversely, the Roberts Court is accused of a series of decisions that permit or proactively endorse autocratic executive power, plutocratic corruption, and discrimination. In the eyes of its critics — and they are legion — the long-vaunted institution has lost its once-glittering legitimacy.