Progressive complaints about the Roberts Court have escalated to extremes. No longer content with labeling the Supreme Court corruptly partisan or a threat to democracy, Ryan Doerfler and Samuel Moyn—law school dons of Harvard and Yale, respectively—declare that the Supreme Court has now lost all legitimacy. Drawing on years of their own scholarship, Doerfler and Moyn argue that the driving spirit of the Roberts Court is enabling Trump’s authoritarian tendencies and rolling back constitutional protections.
Standard progressive responses to the Roberts Court’s alleged excesses have been incremental or technocratic in nature. Seeking to set themselves apart from these comparatively moderate criticisms, Doerfler and Moyn claim that the only solution is complete disempowerment of the Court. Since the Court is already on “the brink of illegitimacy . . . our goal has to be to push it off.” Their argument implodes under closer examination.
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Doerfler and Moyn seem to be motivated by their perception of the Roberts Court’s politics. But disliking the outcomes of the Court’s decisions doesn’t justify their objections. Courts aren’t meant to be policymakers; they are supposed to resolve cases based on principle, not outcome. The Roberts Court is staunchly committed to principles, even if progressives despise those principles. Disagreement about the Court’s interpretive standards calls for measured, scholarly debate, not the wholesale destruction of our nation’s constitutional structure.
To Doerfler and Moyn, the real problem is that the Roberts Court is a de facto collaborator with the authoritarian Trump administration and “has seized the opportunity to empower the nation’s chief executive.” If the Roberts Court is a collaborator, it is a feckless one. Its primary posture toward the political branches has been permissiveness. That’s hardly an argument for the urgency of tearing it down.
The case that Doerfler and Moyn make the polestar of their argument exemplifies this problem. Dobbs v. Jackson Women’s Health Organization nullified past Court rulings that conferred a constitutional right to an abortion and “returned authority [over abortion policy] to the people and their elected representatives.” Whether or not the “penumbras” and “emanations” of substantive due process are enough to sustain abortion rights is an interpretive question that Doerfler and Moyn set aside in favor of wielding an institutional wrecking ball.
But if Doerfler and Moyn are being consistent, they should celebrate the judicial retreat of Dobbs—and creative constitutionalism of the kind that produced Roe v. Wade should be the first target of their democratizing reforms. A decision by the Supreme Court not to intervene operates in precisely the opposite direction of their argument that the Court endangers our constitutional system. Even if one argued that a Court walking back its own power is tantamount to leaving a tottering democracy in the lurch, that wouldn’t make it a proactive threat to democracy.
The Roberts Court has generally deferred to the political branches—empowering states in democratic design, preferring accountable rather than judicial administrative authority, and enabling executive power. Meantime, the most ferociously critiqued intervention that the Roberts Court made was its marginal extension of the long-established principle that governmental racial classifications are illegitimate except in a vanishingly small handful of contexts. When the Court prohibited race-based affirmative action in SFFA v. Harvard (2023), it closed an already razor-thin opening and reaffirmed 30 years of constitutional disapproval of racial classifications. This is hardly the stuff of judicial seizure of power.
Earlier courts engaged in far more radical judicial activism—moves of which critics of the Roberts Court often approve. During the 1950s and 1960s, the Warren Court transformed such diverse areas of American society as policing, religion in schools, and electoral process. These judicial decisions proactively altered the daily experience of American life and curbed the power of accountable government; they generated decades of controversy and forced a reckoning with aggressive constitutional interpretation.
In their scholarship, Doerfler and Moyn see the Warren Court as an admirable but anomalous exemplar of the merits of robust judicial review. In their view, the Warren Court’s progressive legacy makes liberals more hesitant than they should be to curb judicial authority. If the Warren Court were still with us today, one wonders whether Doerfler and Moyn would be calling for a radical restriction of judicial power. If they are truly concerned about judicial overreach, the Warren Court would be the most obvious example of that problem. By comparison, the Roberts Court should be a source of comfort to principled judicial minimalists. Doerfler and Moyn’s condemnations of the Roberts Court reveal the partisan foundations of their stance.
All that’s left of their argument is an empirical point: trust in the Supreme Court is declining. This may well be a function of rising polarization. In a divided nation, even a neutral decision-maker confronted with major controversies would be less likely to generate uniform approval.
Media coverage has likewise polarized, shaping the perceptions of everyday Americans who lack the time to parse the yearly crop of Supreme Court opinions. Among academics, hostility toward the Roberts Court has a simpler explanation: they are predominantly left-wing and would prefer a Court that makes more ideologically palatable choices.
Ideally, judging is meant to be a neutral and principled exercise, not an expression of personal political ideology. The worst possible deviation from that ideal is a bench that obstructs democratic governance via the elected branches. By contrast, a bench that deviates from neutrality by merely passively accepting political outcomes is the least alarming possible pathology. Even if we concede Doerfler and Moyn’s political preferences, the Roberts Court’s complicity with the Trump administration makes a poor case study for their agenda.
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