Big-Picture Thoughts on a(nother) Brutal SCOTUS Term

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In an op-ed in The Boston Globe today, I consider how during the Term that just concluded Chief Justice John Roberts seemed to wrestle control of the Supreme Court away from its most reactionary members--Justices Clarence Thomas and Samuel Alito. Perhaps talk of the "Thomas Court" was premature. Even if so, however, as I argue in the op-ed, the "Roberts Court" isn't exactly the right way to describe the current Court either.

Denoting the Supreme Court in a particular era by the name of the Chief Justice, if more than an empty formalism, typically signifies some distinctive vision of the Court and/or the law. In the op-ed, I give the examples of Chief Justices John Marshall in the early Republic and Earl Warren in the 1950s and 1960s. The current Court has no distinctive vision apart from the agenda of the Republican Party. Thus, I conclude that if anyone should have their name attached to this Court, it's Mitch McConnell, who effectively created it and whose values it promotes.

I also have a new Verdict column. It's a bit more wonky (but still accessible to non-specialists, I hope). I contrast the vision of the Supreme Court that Alexander Bickel defended with the current approach. Bickel thought it wise for the Justices to use gatekeeping procedural mechanisms--like strategically denying review or invoking the political question doctrine or standing defects--as a means of ducking sensitive issues. By contrast, the current Court often seems to manipulate those gatekeeping doctrines to allow the conservative supermajority to make culture-war pronouncements.

ICYMI, earlier today, Prof. Caroline Corbin posted a terrific new essay on the false equivalence that Justice Gorsuch draws for the Court in 303 Creative between a web designer subject to a general public accommodations law that happens incidentally to bump up (just barely) against her views and the schoolchildren in West Virginia School Bd. v. Barnette who were required to recite the government's official credo.