Sunday, September 25, 2022

SCOTUS going rogue

| July 7, 2022 1:00 AM

Something unprecedented is happening in the U.S. Supreme Court, and I don’t mean abortion.

The court has — if you’ll forgive the term — gone rogue, veering so far away from longstanding, reliable methods of applying law and constitutional analyses that law professors are already saying they aren’t sure how to teach anymore. Bar associations are changing requirements for bar exams.

It’s starting to look like some kind of legal free-for-all up there. And that’s not good for this nation. The law must be, whatever it dictates, reliable. Understandable. Predictable. Otherwise, how are we supposed to know how to follow it?

Yes, the Supreme Court has always been to some extent political. When your job is to decide between principles and applications of law that are inconsistent, unclear or just plain highly controversial, at some point policy and perspectives are going to be at play. What’s different about the term SCOTUS just completed is that instead of examining the law, the Constitution, and the way the facts of each case played in and then — and ONLY then — looking at the political side of the equation (and usually only subtly, based on court history), the process seemed more reversed.

Forget about the substance of these cases for a minute, and consider the broader picture.

For the first time, an individual right granted by the court was taken away. That’s never happened, and that precedent leaves open other individual rights to the same fate (as Justice Thomas rather explicitly hinted in the written opinion).

That should scare every American. Never in our history have rights shrunk, until now. Do it once, and they create a precedent to do it again, on some other issue.

It wasn’t just abortion. Separation of church and state took an ostensible hit, with a more concerning undertone.

Some might cheer a decision to allow government funding to religious schools, but when it doesn’t matter if the schools who want the funds do or don’t discriminate (again, calling into question the protection of previously granted individual rights), the big picture shows something else is going on. As with the abortion case, the victory becomes less about expanding rights and more reminiscent of restricting them.

Take the concealed carry decision against New York. Gun rights won, but at the expense of states’ rights to decide what’s legal in their state. Once again, a right restricted. The give and take in these decisions suggests a new theme for the court, one that legal scholars both conservative and liberal are calling unprecedentedly political, and game-changing because of the new approach the majority is taking to how they interpret constitutional law. And more to the point, how they set constitutional policy.

If we really do go back to how things were when the Constitution was drafted (as some of these decisions suggest by chucking later-created rights), this nation will look very different in ways most of us aren’t imagining. Liberty is taking some big hits, in the name of expanding it. So say lawyers commenting from both sides of the political spectrum on this bizarre court term.

This is all so baffling to lawyers and law professors that the National Conference of Bar Examiners announced test-takers don’t have to know recent SCOTUS decisions. That, too, is unprecedented. And just weird, since major Supreme Court decisions are otherwise a huge part of what every lawyer is supposed to know, as the law of the land.

The whole thing is rather evocative of the wild, wild West.

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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Email

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