By Donald Ayer
Mr. Ayer was a U.S. attorney and principal deputy solicitor general in the Reagan administration and deputy attorney general in the George H.W. Bush administration.
The Supreme Court has final authority to make difficult judgment calls articulating the powers of government and the limits and constraints upon them. To merit the public trust, these judgments must not appear simply as assertions of individual value choices by the justices or willy-nilly discard long-established court precedents that profoundly affect people’s lives. Nor should they actively undermine the ability of governments to advance public purposes as established by a fair democratic process.
As the court begins a new term, regrettably, its recent history suggests that it lacks a majority of justices with sufficient concern about the basic continuity and integrity of the law or the ability of government to function.
The evidence has been growing quietly in recent years — and then, last summer, quite loudly, when the court decided to twiddle its thumbs while Texas enacted an abortion law that practically bans nearly all procedures while evading timely judicial review.
This distressing turn of events has a special irony for me personally. In the 1980s, along with three of the current justices (John Roberts, Samuel Alito and Clarence Thomas), I participated in the Reagan revolution in the law, which inspired and propelled the careers of three other current justices (Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett).
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The Reagan revolution pitted itself against “activist” judges who were seen as following personal whims by altering the law and creating rights not found in the Constitution. Through interpretive tools like textualism and originalism, the Reagan lawyers sought to make the law more predictable and steady — as articulated by John Roberts, the job of justices was “to call balls and strikes, and not to pitch or bat.”
That revolution, however, has morphed into what it was meant to curtail, as the expanding right-wing majority on the Supreme Court has relied on an array of innovative constitutional rights to undermine traditional governmental actions while discarding longstanding precedents with which they disagree.
In the highest-profile case of the court’s new term, Dobbs v. Jackson Women’s Health, the conservative justices may be ready to repeal the constitutional right to abortion.
At the same time it seems ready to cast aside certain constitutional rights, the court today regularly gives sweeping new interpretations to other rights and invokes them to radically narrow certain government powers that were until quite recently uncontroversial, including, for example, powers related to public safety or our democratic process.
It may be ready to do just that in an upcoming firearms case in which a lower court upheld, in a manner largely consistent with other recent decisions, a New York State law that requires evidence of good cause for a person to obtain a license to carry a gun outside of the home. In the 2008 Heller case, the Supreme Court acknowledged that the Second Amendment right to bear arms does not allow a person to “keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Another potential blockbuster case — it is not yet officially on the docket — would consider a reversal of the court’s precedent approving affirmative consideration of race as a factor in college admissions.
My concerns about what the Supreme Court might do now are fed by its actions in the recent past. Last term was marked by a number of radical departures from precedent and existing law to elevate certain constitutional rights of individuals in a way that can stop government at all levels in its tracks.
Perhaps most unexpected and disturbing were decisions elevating rights of religious assembly over local public-safety rules related to Covid-19 that limited the ability to gather. Yet throughout our history, in matters of public health, the powers of local government have usually been at their apex. That did not matter here — nor did the fact that Chief Justice Roberts was among the dissenters.
Another decision that received less attention but was still shocking involved the Takings Clause of the Fifth Amendment, which says private property may not be taken for public use without just compensation. The decision struck down a California agriculture labor regulation that gave union organizers the right to come to specific areas of a grower’s property at limited times to speak with workers.
Mr. Ayer was a U.S. attorney and principal deputy solicitor general in the Reagan administration and deputy attorney general in the George H.W. Bush administration.
The Supreme Court has final authority to make difficult judgment calls articulating the powers of government and the limits and constraints upon them. To merit the public trust, these judgments must not appear simply as assertions of individual value choices by the justices or willy-nilly discard long-established court precedents that profoundly affect people’s lives. Nor should they actively undermine the ability of governments to advance public purposes as established by a fair democratic process.
As the court begins a new term, regrettably, its recent history suggests that it lacks a majority of justices with sufficient concern about the basic continuity and integrity of the law or the ability of government to function.
The evidence has been growing quietly in recent years — and then, last summer, quite loudly, when the court decided to twiddle its thumbs while Texas enacted an abortion law that practically bans nearly all procedures while evading timely judicial review.
This distressing turn of events has a special irony for me personally. In the 1980s, along with three of the current justices (John Roberts, Samuel Alito and Clarence Thomas), I participated in the Reagan revolution in the law, which inspired and propelled the careers of three other current justices (Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett).
Advertisement
Continue reading the main story
The Reagan revolution pitted itself against “activist” judges who were seen as following personal whims by altering the law and creating rights not found in the Constitution. Through interpretive tools like textualism and originalism, the Reagan lawyers sought to make the law more predictable and steady — as articulated by John Roberts, the job of justices was “to call balls and strikes, and not to pitch or bat.”
That revolution, however, has morphed into what it was meant to curtail, as the expanding right-wing majority on the Supreme Court has relied on an array of innovative constitutional rights to undermine traditional governmental actions while discarding longstanding precedents with which they disagree.
In the highest-profile case of the court’s new term, Dobbs v. Jackson Women’s Health, the conservative justices may be ready to repeal the constitutional right to abortion.
At the same time it seems ready to cast aside certain constitutional rights, the court today regularly gives sweeping new interpretations to other rights and invokes them to radically narrow certain government powers that were until quite recently uncontroversial, including, for example, powers related to public safety or our democratic process.
It may be ready to do just that in an upcoming firearms case in which a lower court upheld, in a manner largely consistent with other recent decisions, a New York State law that requires evidence of good cause for a person to obtain a license to carry a gun outside of the home. In the 2008 Heller case, the Supreme Court acknowledged that the Second Amendment right to bear arms does not allow a person to “keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Another potential blockbuster case — it is not yet officially on the docket — would consider a reversal of the court’s precedent approving affirmative consideration of race as a factor in college admissions.
My concerns about what the Supreme Court might do now are fed by its actions in the recent past. Last term was marked by a number of radical departures from precedent and existing law to elevate certain constitutional rights of individuals in a way that can stop government at all levels in its tracks.
Perhaps most unexpected and disturbing were decisions elevating rights of religious assembly over local public-safety rules related to Covid-19 that limited the ability to gather. Yet throughout our history, in matters of public health, the powers of local government have usually been at their apex. That did not matter here — nor did the fact that Chief Justice Roberts was among the dissenters.
Another decision that received less attention but was still shocking involved the Takings Clause of the Fifth Amendment, which says private property may not be taken for public use without just compensation. The decision struck down a California agriculture labor regulation that gave union organizers the right to come to specific areas of a grower’s property at limited times to speak with workers.
Opinion | The Supreme Court Has Gone Off the Rails (Published 2021)
Justices who once derided judicial “meddling” are now meddlers themselves.
www.nytimes.com