The Court that conservatives wanted

Justice Amy Barrett’s confirmation to the Supreme Court would spell doom for the Affordable Care Act, Roe v. Wade, and the 2015 Obergefell ruling on same-sex marriage — or so Sen. Sheldon Whitehouse, D-R.I., and others insisted last October at the start of the Supreme Court’s new term. Reality turned out very differently than Whitehouse predicted.

This court is neither a liberal court nor the court that the liberals feared, but it also is not one that today’s conservatives had in mind, either. Ironically, this court is one that conservatives said they wanted as recently as a decade or two ago. That is, a court aligned with the vision of 17th century philosopher Edmund Burke that believes stability in law and society is the highest virtue.

Chief Justice John Roberts described himself at his confirmation hearing as a “modest judge” who doesn’t “think the courts should have a dominant role in society and stressing society’s problems.” In response to the mid-century Warren-era Court, which conservatives saw as interfering too much in the political process, conservatives are the ones who once developed the ideals of “judicial minimalism” now embraced by Roberts. Once upon a time, it was conservatives who objected to judges “legislating from the bench,” the opposite of which was seen as letting the political process work. Anything judges did to interfere with congressional or state legislation was viewed with suspicion.

But as both parties have skewed more ideological, stability and deference to Congress is no longer what motivates conservatives. Twenty Republican attorneys general and a Republican president asked the court to entirely invalidate the Affordable Care Act, and many of the Republican-appointed justices refused even to answer the galvanizing question of whether all of the

Affordable Care Act was unconstitutional.

The religious right asked the court to give a broad ruling in favor of Catholic charities being shut down by Philadelphia because the charities refused to endorse same-sex couples. The court refused, instead issuing a narrow opinion on a provision of their contract with Philadelphia and refused to answer the core questions of religious views versus anti-discrimination laws.

With Barrett, the court moved in the modest direction of allowing churches to operate during the pandemic when states like California and New York wanted effectively to end all church services. Roberts would have deferred to California and New York to make those calls.

But, while many of the high-profile or social questions before the court were simply not answered, the court did take steps to reform the administrative state — the fourth branch of government spawned during the New Deal that has unelected administrative agencies deciding the rules the people have to live under.

In that regard, the most exciting result of a case this term, United States v. Arthrex Inc., concerned the authority of administrative patent judges to issue final decisions that could not be reviewed. In a 5-4 decision, the court found that such unreviewable authority could only be wielded by principal officers of the United States, who must be confirmed by the Senate.

Arthrex is important for two reasons: scope and principle. The potential scope of this decision is vast. For instance, as agency rulemakings cannot be changed after they are finalized without restarting the process from scratch, do rulemakings need to be done by principal officers for that reason? The principle at issue is also fundamental, as it ensures at least careful review by the Senate of those with such substantial authority.

Another good decision this term was in Collins v. Yellen where the court declared the structure of the Federal Housing Finance Agency to be unconstitutional due to lack of presidential control. The director of the FHFA had complete control of the mortgage industry and yet was unjustifiably shielded from removal by the president. The president lacks real control over the FHFA — an executive branch agency — if he cannot remove the person who runs it.

These are significant structural reforms that start to return the administrative state to a more proper separation of powers. But the real question after this term is: How are Republicans going to respond to their own nominees not doing what they envisioned? Republicans appointed six of the justices now on the court, yet they don’t seem to like the Burkean court that they appointed.

Given the right’s dissatisfaction with their own appointees, will Republicans change their future judicial selection process? In the past, Republicans have seen their job as asking softball questions to their nominees to help them get confirmed. Will they do more to press potential nominees for answers to questions on jurisprudence? Will that lead to the fears of Sen. Whitehouse on the Affordable Care Act, Roe v. Wade, and Obergefell?

Republican voters could bring an end to the era of softball questions, selecting elected officials who promise to do better in vetting and getting “the right” nominees on the bench.