As Republican nominees of archconservative Supreme Court yank back precedents of the last hundred years in an attempt to scrub American society of any rights that old-timey English witch-hunters or Colonial-era slaveholders would find distasteful, we've landed ourselves in a place where nobody's quite sure what is or isn't covered by United States law because court conservatives have been increasingly unwilling to bother with explaining it to us. Or, rather more urgently, to the lower courts who have been trying to piece together their rulings into a consistency that Justice Blackout Drunk or Justice Papal Seance haven't bothered to themselves provide.
It's nice to see judicial experts and reporters alike putting some real numbers to the problem, and The New York Times has a genuinely good(!) examination of the court's eagerness to change even their own internal processes in order to more efficiently arrive at the preferred conservative outcomes without argument or, increasingly, without waiting for lower court decisions in the first place.
The end result is not a deference to the executive branch, to Congress, to states, or to lower courts, the Times quotes from a Harvard Law Review examination of the record, "withdrawing power from all of them at once."
Some of the most useful data from the piece:
• The Roberts court has sided with the executive branch "just 35 percent of the time" in high-profile cases, "a rate more than 20 percentage points lower than the historical average."
• The Supreme Court is making a regular habit of plucking cases before federal appeals courts to be presented for arguments before the appeals courts have made rulings to begin with. "Before 2019, the court had not used the procedure for 15 years;" since 2019, the Roberts court has done it 19 times.
• "More than any other court in history," a new study finds, the Roberts court "uses its docket-setting discretion to select cases that allow it to revisit and overrule precedent."
All of this is what Supreme Court critics have been grousing about since the Court first began its new sprint to the right, so it's useful to see data to back up the complaints. Yes, the conservative Court is "revisiting" long-established precedents at a historically unprecedented rate. Yes, a peculiar new habit of the court's conservatives is to use the so-called shadow docket to force preferred outcomes in cases without arguments or even an explanation of why the rules have changed. And no, while the Court has had little patience for allowing the executive branch to interpret rules and regulations the executive branch was tasked with writing, the Court isn't deferring to congressional, state, or lower court opinions, either.
If you're a lower court trying to determine which United States laws are still real and which have been upended due to new conservative rulings favoring the Republican Party's selected polluters and religions, you're reduced to guesswork, not law books. A common thread among even the current Court's most-explained reversals of precedent has been an inability for lower courts to deduce how the hell they're supposed to apply those rulings going forward; the reason for the confusion is that so many of the conservative decisions appear to contradict even what the same justices declared just a few decisions back.
We'll have to leave it to legal experts for suggestions on counteracting a Supreme Court that's decided the last 200 years of history was a mistake that needs correcting. Filling the court with a few more justices who haven't been specifically handpicked by the Federalist Society to sabotage human rights and cooperative governance both seems like it'd be a plus, so long as we're talking about correcting past errors. But apparently, doing that would be (checks notes) an insult to the current Court and to the seditionist who created it.
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