How the 'dogmatic' Roberts Court fulfilled a 'robust conservative wish list': journalist

11 July 2023

For decades, the Religious Right and far-right white evangelicals angrily railed against all the conservative GOP-appointed U.S. Supreme Court justices they regarded as bitter disappointments — a list that ranges from Ronald Reagan appointees Anthony Kennedy and Sandra Day O'Connor to Chief Justice Warren Burger, appointed by Richard Nixon after Chief Justice Earl Warren's 1969 retirement.

Kennedy was a right-wing libertarian, but liberals and progressives were pleasantly surprised by his rulings on abortion and gay rights. And Warren was a Republican who was nominated by President Dwight D. Eisenhower and had been GOP New York Gov. Thomas E. Dewey's running mate in the 1948 presidential election (the Dewey/Warren ticket lost to incumbent Democratic President Harry Truman by 4 percent).

But in 2023, the Religious Right finally has a Supreme Court full of radical-right ideologues. And journalist Linda Greenhouse, in an op-ed/essay published by the New York Times on July 9, offers some reasons why the Roberts Court's 2022 and 2023 rulings have faithfully carried out a "robust conservative wish list."

When President George W. Bush nominated Chief Justice John Roberts in 2005, Greenhouse notes, that "wish list" included "overturn Roe v. Wade, reinterpret the 2nd Amendment to make private gun ownership a constitutional right, eliminate race-based affirmative action in university admissions, elevate the place of religion across the legal landscape" and "curb the regulatory power of federal agencies."

"These goals were hardly new," Greenhouse explains, "but to conservatives' bewilderment and frustration, the Court under the previous chief justice, the undeniably conservative William Rehnquist, failed to accomplish a single one of them. In fact, to any conservative longing for change, the situation in 2005 must have appeared grim indeed. Not only had the Rehnquist Court reaffirmed the right to abortion in the 1992 Casey decision — in 2000, it overturned a state ban on so-called partial-birth abortion, a law aimed at enlisting the Court in a graphic anti-abortion narrative."

Greenhouse emphasizes that although civil libertarians have been applauding the High Court's Moore v. Harper ruling, that doesn't erase the fact that so much of the "wish list" has been fulfilled.

In Moore v. Harper, MAGA Republicans argued in favor of a far-right legal idea known as the independent state legislature (ISL) theory — which, in its most extreme form, claims that only state legislatures have a right to determine a state's election laws. The ISL totally excludes a state's executive and judicial branches from the process.

But in the 6-3 Moore ruling, three Republican-appointed justices — Roberts, Amy Coney Barrett and Brett Kavanaugh — joined Democratic appointees Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson in shooting the ISL to pieces.

Conservative Roberts was scathing in his critique of the ISL, attacking it as fundamentally flawed. The GOP dissenters were Clarence Thomas, Samuel Alito and Donald Trump appointee Neil Gorsuch.

"In refusing to weaken the Voting Rights Act any further," Greenhouse argues, "did the Court show itself to be a bit less dogmatically conservative than the year before? Did the 6-to-3 rejection of a dangerous theory that would have stripped state courts of the authority to review election laws show that the justices could still build bridges across their ideological divide? Yes, democracy survived, and that's a good thing. But to settle on that theme is to miss the point of a term that was, in many respects, the capstone of the 18-year tenure of Chief Justice John Roberts."

Linda Greenhouse's full New York Times op-ed/essay is available at this link (subscription required).

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