There is a common media myth that the current U.S. Supreme Court, or at least a majority of the current justices, is “conservative.”
But if a “conservative” justice is one who
consistently interprets the Constitution in accordance with traditional
methods of judging—as the Founders intended for it to be
interpreted—then the Court is anything but conservative.
On social issues the Court has been pushing society to the Left. Otherwise,
the best description of its jurisprudence is “status quo.” And in this
instance, preserving the status quo renders the Court liberal, not
conservative.
That is because the status quo the justices
are preserving is a body of liberal jurisprudence created in the 20th
century when the Court was usually controlled by “progressive”
majorities.
The Court’s tendency to protect liberal
jurisprudence appears even in cases where the specific outcomes are
pleasing to conservatives. In fact, the “conservative” outcomes often
are relatively marginal—minor victories—while the jurisprudence that
underlies the result is a major triumph for liberals.
Three cases from the Supreme Court term illustrate the point.
The first is the famous Hobby Lobby case,
in which the Court ruled that the Religious Freedom Restoration Act
(RFRA) protects an employer’s right not to provide abortifacients. I have written elsewhere about a liberal victory in Hobby Lobby that received almost no publicity. But there was another, more important, liberal victory on a point of fundamental principle.
The Hobby Lobby dispute arose from
federal regulations of employment and of health insurance purportedly
authorized by Congress in the Affordable Care Act (Obamacare). Unlike the “tax” justification for Obamacare’s individual insurance mandate,
the supposed constitutional basis for those regulations is Congress’s
Commerce Power, contained in the Constitution’s Commerce Clause and
Necessary and Proper Clause.
Everyone concedes, at least in theory, that
Congress has only the authority the Constitution grants it—Congress’s
“enumerated powers.” But properly construed, Congress’s enumerated power
to regulate “Commerce” does not encompass employment relations or insurance,
except in some peripheral situations. The Supreme Court recognized this
consistently for the Constitution’s first 150 years. Indeed, during
that time the Court held repeatedly, and unanimously, that most insurance is NOT “Commerce.” It
was not until “progressive” justices took control in in the late 1930s
and 1940s that the rules changed, and it was not until relatively
recently that Congress began systematically to interfere in the
insurance market.
A bench consisting of traditional
(conservative) justices, therefore, would have held that the Obamacare
regulations were outside the federal government’s enumerated powers, and
thereby invalid for that reason. Such a court would not have reached
the RFRA issue because there was no need to do so.
A second example from the Supreme Court term just past is the campaign finance decision in McCutcheon v. Federal Election Commission.
This case invalidated a congressional effort to limit the total amount
any person could donate to all candidates combined.
The basis for the
decision was the Free Speech Clause of the First Amendment. Media outlets have described this case also as a “conservative” triumph.
