Bench Memos

Law & the Courts

The Supreme Court’s Imaginary ‘Hard Right’ Turn

A cherub figure with a book, symbolizing learning, at the Supreme Court building in Washington, D.C., July 2, 2020. (Jonathan Ernst/File Photo/Reuters)

There is a persistent effort in some corners to paint the Supreme Court as a “hard right” institution, and Chief Justice Roberts in particular as a relentless partisan. The latest example comes from this op-ed in the National Law Journal by Fix the Court’s Dylan Hosmer-Quint, “In Anonymous Decisions, Supreme Court Opaquely Takes a Hard Right” (subscription required). According to the op-ed, the Court’s per curiam orders rejecting last-minute, judicially imposed changes to election procedures and vacating injunctions against the resumption of federal executions represent “partisan” decisions. “Under the cover of darkness, the chief justice is again steering the court hard to the right,” Hosmer-Quint writes.

There are two major problems with Hosmer-Quint’s argument. First, although the article is ostensibly about the need for greater transparency, Hosmer-Quint simply ignores those “anonymous” per curiam orders and decisions that don’t fit his thesis about the Court’s alleged rightward turn. In multiple unsigned orders, the Court has rejected challenges by religious institutions to COVID-control measures that appear to discriminate against religious assemblies. These decisions were also 5–4, but Chief Justice Roberts joined the liberals to form the majorities each time, so they run directly contrary to Hosmer-Quint’s thesis — and he simply ignores them.

Considering the Chief Justice’s behavior as a whole, one sees a fairly consistent pattern of voting against preliminary injunctions by lower courts. This is what unifies his votes to reject lower-court orders changing election rules and blocking executions with his votes against pleas for injunctions by religious institutions, as I discussed in this Volokh Conspiracy post. There is plenty to criticize in the Chief Justice’s jurisprudence, but such criticisms should not be based upon selective evidence squeezed into preset narratives.

A second problem is that the article characterizes decisions that maintain the status quo as sharp right turns. The Supreme Court has made clear that capital punishment is constitutional, and has repeatedly rejected creative efforts to challenge lethal-injection protocols. Whether or not this represents sound policy, preventing lower courts from erecting new road blocks to executions is hardly a “hard right” turn. Ditto orders rejecting district-court injunctions changing election rules. And, again, Hosmer-Quint simply ignores the “anonymous” orders that do not fit his thesis.

Like it or not, the Chief Justice is a judicial minimalist who generally works to preserve the status quo and resists dramatic change (even in his desired direction). This is frustrating to progressives who want the Court to be the vanguard of social change, as it is to conservatives seeking to restore traditional constititutional norms, or to libertarians urging greater “judicial engagement.” My point here is not to defend Roberts so much as to insist that any criticism be based upon his actual record and not some ideological caricature.

There are strong arguments from greater judicial transparency, which I generally support. Yet Fix the Court does not help that cause by making attacks and unfounded criticisms based upon selective evidence.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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