The Washington PostDemocracy Dies in Darkness

Opinion Conservatives, your radical legal revolution will not go unchallenged

Judge Amy Coney Barrett is sworn in as the 115th justice to the Supreme Court by Justice Clarence Thomas. (Jonathan Newton/The Washington Post)
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Things are tense at the Supreme Court, and no one is more unhappy about it than the court’s conservatives. As NPR reports: “The atmosphere behind the scenes is so ugly that, as one source put it, ‘the place sounds like it’s imploding.’”

Inside, an investigation into the leak of a draft opinion overturning Roe v. Wade is treating the justices’ clerks like criminal suspects. Outside, the justices are terribly disappointed with the way their institution has been dragged against its will into the muddy world of politics.

Can’t we all just let them be so they can have their cake and eat it too?

That’s what they’re asking for, and it’s what Republicans desperately want as well.

In the coming weeks, the court will hand down a series of potentially transformative, intensely political decisions, driven not by some incontrovertible and objective reading of the Constitution but by their own equally intense ideology and policy preferences. The political effects will be — and should be — enormous.

When that happens, the court’s conservatives and their Republican defenders will act aggrieved and outraged. How dare we cast aspersions on these noble jurists, who want nothing more than to channel the infinite wisdom of the Framers!

Not only do they merely want to enact their right-wing legal revolution, which is almost unstoppable at this point; they also want us to thank them for it, refrain from ever questioning their motives and excuse them from criticism for the consequences of their actions.

The court’s current term is winding down; a couple dozen decisions are coming, most on rather arcane legal issues the general public will take no notice of. But there are at least three potential blockbusters:

The outcome of the first two are in little doubt. In the third case, oral arguments were less clear about whether Republicans will get what they want, which is for the court to cripple the government’s ability to combat climate change.

That third case is part of a much larger project that goes beyond environmental regulations. The agenda of many on the right and at least some of the court’s conservatives is nothing less than “dismantling the administrative state,” rendering it difficult to impossible for government to protect the environment, workers, consumers or public health via regulation.

There will be more hugely consequential cases in the next term, and the term after that. With a 6-to-3 advantage, the conservatives can do everything they’ve dreamed of. It took decades to build that supermajority, and you can bet they’re going to use it.

Democrats are at last waking up to what they failed to realize for decades: The Supreme Court is the linchpin of power in America. At any one moment, the party that controls the executive branch has more far-reaching ability to enact change, but over the long term, the Supreme Court stands alone. Once you control it, as the right does now, there’s almost nothing that can’t be accomplished.

You were taught in school that the brilliantly designed system of “checks and balances” keeps the branches of government in perfect equilibrium, none able to impose itself too strongly on the others. But that isn’t really true. The Supreme Court has a unique and easily exercised ability to nullify the actions of the other two branches, an ability the current court is using with gusto.

It strikes down business regulations, campaign finance statutes and anti-discrimination laws. It reaches deep into the details of the actions the other two branches take, saying “You may do this, but not that.”

And what can the other branches do about it? Not a thing. Pretty much the only power they have over the court is to impeach a justice, something that has happened only once, 218 years ago.

Republicans understood this all along; they knew the court could be the vehicle to achieve their policy goals. Only now that Democrats understand it too are Republicans affronted that the court is being “politicized.”

No one is more affronted than Clarence Thomas, the court’s most ideologically radical justice. Like many on the right, even in triumph he is consumed with his own victimhood, complaining about the court being “bullied” and warning that we should refrain from “destroying our institutions” when we don’t get “what we want,” even as his wife was wrapped up in the conspiracy to overturn the 2020 election.

That, Thomas and his allies believe, shouldn’t be discussed. The right-wing takeover of the court isn’t enough for them; they want all the court can deliver, and also for the rest of us to leave them out of our messy political debates so they can carry out their revolution in peace.

Sorry, but no.