The Supreme Court does not have the authority to make defacto constitutional amendments via activist rulings.
And yet,
that's exactly what this court is doing. You're not paying attention, or too bound up with ideological purity to care.
The Supreme Court Is Putting Democracy at Risk (NYT, Opinion, Subscription). "In two disturbing rulings closing out the Supreme Court’s term, the court’s six-justice conservative majority, over the loud protests of its three-liberal minority, has shown itself hostile to American democracy." That's not hyperbole.
In numerous recent decisions, most specifically
Shelby County, and yesterday's
Brnovich, they gutted the voting rights act. Neither of those decisions are dictated by, or frankly consistent with, the Constitution, and represent unprecedented judicial activism, comparable to the infamous
Dred Scott decision. Again, not hyperbole. They are creating judicial law out of whole cloth.
Similarly, in
Citizens United and now
Americans for Prosperity v. Bonta they have created judicial doctrine that strikes down fundamental public laws based upon a judicially created fiction at odds with 250 years of precedent. That is
per se judicial activism, yet won't generate any complaint from so-called conservatives.
Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice Roberts (Whitehouse,
Harvard Law and Policy Review). "A troubling and unmistakable trend has developed over several decades, and accelerated in recent years, of extreme judicial activism within the conservative bloc of Justices on the Supreme Court—reaching a new pinnacle under Chief Justice John Roberts.
The Court’s recent activism has advanced a pro-corporate agenda at the expense not only of injured Americans, but also of fundamental democratic institutions. The Court has exposed our elections to corruption and eroded fundamental protections, such as access to the ballot box. It has weakened the role of the civil jury, a constitutional institution intended to ensure equality before the law and an important check in our unique American system of separated powers."
Senator Whitehouse is far from alone in that concern.
"By the first decade of the twenty-first century, liberals—who were now almost all Democrats—had become deeply concerned about how conservative majorities on the Rehnquist and Roberts Courts used judicial review. They attacked judicial supremacy and increasingly argued for judicial restraint.
4 Conversely, conservatives—who were by now almost all Republicans—emphasized the importance of courts in protecting federalism, religious liberty, and other import Reciteant conservative constitutional values."
Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time (Jack M. Balkin,
Texas Law Review). "If the Court accepted nothing but commercial-speech, campaign-finance, and federalism cases, conservatives and Republicans would appear to be aggressive judicial activists, and liberals defenders of a modest, deferential judiciary." They've completely rewritten decades of Constitutional interpretation and precedents, and obliterated others in decisions like
Hobby Lobby, in church-state separation, and
Heller-McDonald's interpretations of the Second Amendment.
