This essay was first published in the Jan. 2, 2023 Epoch Times.
Mainstream media and commentators often claim we have a “6—3 majority conservative Supreme Court.”
No, we don’t.
And to make the point, I thought I might explain what a truly conservative Supreme Court would be like: I mean a conservative court in the sense that we used to have a liberal one.
Early in the 1787 Constitutional Convention, advocates of states’ rights were complaining about the “nationalism” of delegates such as James Madison and James Wilson. So arch-nationalist Alexander Hamilton stood up to tell them the kind of Constitution he wanted. In an oration lasting all day, Hamilton outlined his proposals for a president for life with an absolute veto, a senate for life, states subordinated to an all-powerful central government, etc., etc.
Once Hamilton sat down, some of the complainers probably decided that moderate nationalists like Madison and Wilson weren’t so bad after all.
I’m going to perform Hamilton’s trick here. I’m going to describe the kind of decisions a truly conservative-activist Supreme Court would make. Then maybe some of our liberal friends will be grateful that we really don’t have such a court.
No one in today’s six-justice majority is an outcome-driven conservative in the way the three left-leaning justices are outcome-driven liberals. The six follow a variety of judicial philosophies, ranging from the “minimalism” of Chief Justice John Roberts to the “originalism” of Justice Clarence Thomas.
Sometimes those justices produce results conservatives like. Sometimes they produce results liberals like. That’s not a liberal majority; but it’s not a conservative one, either.
For perhaps a century, the Supreme Court has included liberal activists among its members. During much of the 20th century, the liberal activists comprised an absolute majority of the justices. But there has not been a single conservative-activist on the bench since Justice McReynolds retired in 1941.
If there were a conservative-activist majority, what would it do? We can extrapolate this from the following:
- What liberal-activists did when they held a majority;
- what they recommended when they were in the minority; and
- the direction that strongly libertarian and deeply conservative scholars recommend for the court.
Accordingly, let’s imagine it’s a few years down the road, and six of the nine justices are conservative activists. In other words, let’s imagine what a truly conservative Supreme Court would do.
Former Justice Stephen Breyer, a liberal activist, reached some of his decisions by favoring one constitutional value—democracy—over other constitutional values, such as liberty and federalism. Other liberals have said that if there’s a question about whether an economic or social law is constitutional, then the government should win. (At least they said this about liberal legislation.)
A conservative-activist majority would play the same game, using what one scholar calls “a presumption of liberty.” This means that if it’s doubtful whether a statute constraining liberty is constitutional, then liberty wins and the statute is void.
As a result, our hypothetical conservative-activist majority strikes down Obamacare, mandatory Medicare, mandatory Social Security, and most of the Environmental Protection Act.
The liberal activist majorities of the 20th century announced that rights they favored held a “preferred position” and deserved more protection than other rights (such as property). They even awarded a “preferred position” to some rights that aren’t in the Constitution at all, while denying that favorable treatment to others the Constitution does protect.
Our new conservative-activist majority does the same, but with different rights. It announces that property and economic liberties are in a “preferred position.” It justifies this by saying, “Without property and economic liberty, none of the other rights are enforceable. Hence, they are more fundamental than other rights.”
Accordingly, the court begins to expand the scope of the Takings Clause of the Fifth Amendment. Following the argument of a prominent libertarian scholar, the justices rule that whenever government adopts a regulation benefitting some at the expense of others, the government must compensate the losers. As a result, governments wind up paying billions of dollars to property owners for losses caused by environmental regulations.
The court also expands the Contracts Clause (Article I, Section 10, Clause 1). Now any state legislature adopting a new economic regulation that reduces the value of existing contracts must exempt those existing contracts from coverage.
Right to Keep and Bear Arms
When liberal-activist majorities awarded a “preferred position” to rights they favored, they proclaimed that any law limiting those rights is subject to “strict scrutiny,” and therefore presumed unconstitutional.
Needless to say, the liberals didn’t give this “preferred position” to the Second Amendment’s right to keep and bear arms.
The new conservative-activist majority rules that the Second Amendment is in a “preferred position” and any restriction on the right to keep and bear arms will be subject to “strict scrutiny.”
Substantive Due Process
The Due Process Clauses of the 5th and 14th amendments were designed for one purpose: to ensure that the government follows pre-established standards when proceeding against a person civilly or criminally.
Nevertheless, both liberal and conservative activists have re-written the Due Process Clause to void state and federal laws they disfavor. (The only difference is that conservative and liberal activists disfavor different kinds of laws.)
The new conservative majority strikes down a range of state and federal economic regulations as violating due process. Gone are minimum wage laws, maximum hour rules, price controls of any kind—any measure the justices, in their assumed wisdom, think is “unreasonable.”
The liberal-activist majorities of the mid-20th century proclaimed that the Constitution protects rights the document actually doesn’t say anything about. Examples included abortion and sodomy.
Most liberal justices said these practices were protected because they were “liberty interests” under the Due Process Clauses. Others said they were protected by the Ninth Amendment. (Actually, the purpose of the Ninth Amendment was to clarify limits on the federal government, including the courts.)
Following the recommendations of some libertarian writers, the new conservative activist majority announces that unenumerated rights don’t include abortion or sodomy—but they do include property and other economic liberties. The justices strike down all business and environmental regulations they deem too intrusive.
The Religion Clauses of the First Amendment were designed to ensure that all religions are treated equally. Rightly or wrongly, they weren’t designed to give equal status to atheism or irreligion (pdf).
However, when liberal justices comprised a majority on the Supreme Court, they established a “strict separation” rule that, in effect, favored secularism.
Back to our hypothetical world with a conservative-activist Supreme Court majority: Following the recommendations of some deeply-conservative writers, the justices limit the protection of the First Amendment to Christians. They announce that the First Amendment means only that Christian denominations must be treated even-handedly. Other religions enjoy only limited toleration.
You get the idea. If the Supreme Court had a majority of justices who were “conservative” in the same sense that prior majorities were “liberal,” the court would be mangling the Constitution to achieve its favored results—just as prior liberal activist majorities mangled the Constitution to get what they wanted.
Our liberal friends should thank Heaven that their suppositions about the current Supreme Court’s majority aren’t true.