Beyond Triumphalism and Despair

On Reacting to the Supreme Court of the United States

Some people are reacting to the recently concluded Supreme Court term with a form of glee, even triumphalism.

It as if the Court has enthusiastically embraced what they most care about, and signaled a big, bright future. (For some, it’s the MAGA Court - finally!)

Others are reacting to the Court’s term with a form of despair, sometimes accompanied by rage.

It is as if the Court has rejected everything they care about, and signaled a bleak, dark future. (For some, the justices are in President Trump’s pocket.)

Triumphalism on one side, and despair on the other, are often felt as the Supreme Court ends its term. But they are usually unwarranted. One reason is that they tend to engraft a big, dramatic, connect-the-dots narrative on a (small) set of decisions that are not easily or properly understood by reference to that narrative. The large narrative may be plausible and intuitive; but it might not be at all right.

Another reason involves the size and the nature of the sample. More specifically, the size is small, and it is hardly random.

Suppose, for example, that a President loses five, or ten, important cases in a particular term. Should we conclude that the Court has some kind of animus against that President? The data would not justify that conclusion. Maybe the President did 1000 things, and maybe 990 of them were upheld by lower courts, and the Supreme Court saw no reason to disturb those rulings.

Something similar might be said, of course, if a President wins five, or ten, important cases in a particular term.

Here are some of the things that the Supreme Court did this term:

1. Scaled back the role of federal courts in requiring detailed environmental impact statements under the National Environmental Policy Act (welcomed by the right, not welcomed by the left; but note that the left might come to like the decision over time, and the right might come not to like it so much, since commercial interests often seek to use NEPA)

2. Severely restricted the power of district courts to issue nation-wide injunctions (“Universal injunctions likely exceed the equitable authority that Congress has given to federal courts”) (welcomed by the right, not welcomed by left; but note that this may shift over time, because Democratic presidents will benefit from the ruling)

3. Upheld a provision of the Affordable Care Act against an argument that it violated Article II and unconstitutionally limited the President’s removal power (welcomed by the left, not welcomed by the right)

4. Rejected a nondelegation challenge to a section of the Telecommunications Act of 1996 (welcomed by the left, not welcomed by the right)

5. Upheld Tennessee’s ban on “gender-affirming care” for trans young people (welcomed by the right, unwelcome to many on the left)

6. Issued a number of stays of lower court orders, in the general domain of immigration, prohibiting certain actions by the Trump administration (welcomed by the right, unwelcomed by many on the left)

On the basis of these rulings, we might be open to mini-triumphalism or mini-despair — in the sense that some people might dance to see (2), and others might despise (2), and some people might dance to see (4), and others might be very worried indeed by (4). When the Court overruled Roe v. Wade, and struck down affirmative action, large reactions were entirely justified.

But it is harder to make sense of macro-triumphalism or macro-despair, certainly if they are crudely political (as in, “it’s a pro-Trump Court”). No one should be surprised if, for example, the Trump administration loses a set of big cases in the Supreme Court next term. If that happens, we should not say that the Court “reversed course” or “tacked to the center” or “went right, then left.” It’s likely, for example, that the Court will not accept President Trump’s views on birthright citizenship, and if it does not, it will not have acted inconsistently with (2).

All this leaves open a question: Does any narrative, potentially productive of triumphalism or despair, fit the cases? Here are some possibilities:

1. This is an originalist Court. Kind of. To some extent, it is. Or maybe better: The Court is not not an originalist Court. But the nondelegation ruling doesn’t say a whole lot about the original meaning of the founding document, and the First Amendment cases work far more with precedents than with the original meaning.

2. This is a pro-executive power Court. Kind of. Maybe more than kind of? The Court certainly believes in a unitary executive, which means that the independent agencies are in serious trouble. The immunity decision is a gift to the president (and in my view, pretty wild). But we have to be careful here. See (3) above; see also (2), where the Court noted that the executive has to follow the Supreme Court; see also Loper Bright, overruling Chevron; see also the Major Questions Doctrine, cabining executive authority.

3. This is an anti-regulation Court. Kind of, and maybe more than kind of. See the Major Questions Doctrine; see (1) above; see the cases emphasizing the Court’s need to respect regulatory inaction, alongside the cases taking a pretty strong stand against regulatory action. But again, we have to be careful here. These cases are all argued and decided by reference to conventional legal materials, and while it is possible to disagree vigorously with some of them (as I do), the justices are not exactly on a mission here.

4. This is a Court that agrees with the cultural right, not the cultural left. Kind of, and probably. See (5); Dobbs; recent religion cases; gun cases. But one last time, we need to be careful here. The apparent overlap between the Court’s rulings and the views of the cultural right might be a product of the particular sample, or of originalism or of traditionalism (though it’s not unfair to ask whether the opposite might be true).

5. This is a conservative Court. That’s not the most precise description, but sure, it’s not wrong. It needs to be specified; see (3) and (4). And once specified, it’s confounded by plenty of rulings.

Of course there is something to (1), (2), (3), (4), and (5), which might lead some people to midi-triumphalism and midi-despair, or to something verging on those. But even if these narratives capture something, the justices are lawyers, and they haven’t sworn allegiance to narratives.

For those who like football metaphors: Their decisions tend to go between the thirty-yard lines, not between the goalposts. For those who don’t like football metaphors, consider these words from Oliver Wendell Holmes, Jr.: “I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.” (Overstated but still.)

Triumphalism and despair are siblings, and if they follow from big narratives about where the Court is “clearly heading,” they are likely to run afoul of reality. So please don’t be at all surprised if we see important decisions, in the next two years, that seem wildly inconsistent with (1), (2), (3), (4), and (5).