Now you have the ability to listen to articles from Fox News! The balance of power within the Supreme Court has shifted towards a “conservative” majority ever since three new justices were appointed during the Trump administration. However, it is important to note that this shift does not mean the current court automatically approves laws or actions that are favored by conservative voters and politicians. In fact, both the court as a whole and individual “conservative” justices have issued opinions that support Big Tech, animal welfare, and labor unions, demonstrating a commitment to jurisprudence rather than politics. The “conservatism” of the current court is deeply rooted in “originalism,” which emphasizes interpreting and applying the Constitution based on its original public meaning at the time of adoption. This approach demands careful consideration of the written text, the overall structure of the Constitution, and historical context from both the framing period and the early republic.
Legacy media sources often misrepresent the Supreme Court as solely “conservative.” However, many of the justices uphold the original wording of the Constitution, guiding their decisions accordingly. This originalist perspective has significant implications:
1. Separation of Powers: Originalism fosters a renewed focus within the court on preserving the founders’ system of federal separation of powers. The current court has initiated a gradual process of reversing the misallocation of federal powers and reining in the overreaching administrative state. A significant case in this realm is West Virginia v. Environmental Protection Agency (2022), which we explore in detail in our book, “The Politically Incorrect Guide to the Supreme Court”. Restraining the administrative state would necessitate substantial changes in governance, safeguarding civil liberties and revitalizing democratic discourse on critical issues such as mask mandates, compulsory vaccinations, student debt forgiveness, carbon emission regulation, and the national debt.
2. Individual Rights: The court’s originalist perspective has prompted a reaffirmation and invigoration of individual rights, particularly the right to bear arms. In our book, we thoroughly examine the three groundbreaking cases (District of Columbia v. Heller, 2008; McDonald v. Chicago, 2010; and New York State Rifle & Pistol Ass’n v. Bruen, 2022) that exemplify the court’s evolving jurisprudence on gun rights. Bruen, in particular, signifies a shift in treating the Second Amendment as a fundamental right, equivalent to the cherished liberties like freedom of speech.
3. Abortion Rights: Through the lens of originalism, the court has measured the question of the unenumerated right to an abortion against the Constitution. As detailed across multiple chapters in our book, the originalist framework finds no constitutional basis for such a right. This is evident in the court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), where the court overruled the landmark Roe v. Wade (1973) decision and the subsequent Planned Parenthood v. Casey (1992) decision. The Constitution does not explicitly grant a right to abortion, and the court had previously based its recognition of the right on a vaguely defined “privacy” right, even though it involved terminating the life of an unborn child or fetus. Dobbs firmly solidified the court’s rejection of Roe, categorizing it among its most egregious errors.
The court’s principled decision in Dobbs sparked excessive hostility and misinformation, starting with the leak of Justice Samuel Alito’s draft opinion and escalating to protests outside the residences of conservative justices, death threats, and even an assassination attempt. The court continues to face attacks aimed at eroding its independence, such as proposals for court-packing and misguided “ethics” requirements put forth by liberals in Congress and the media.
Despite these unwarranted slanders and threats, the court remains steadfast and shows no signs of surrendering to its critics. In the final chapter of our book, we outline our expectations for the court’s future trajectory and discuss the weight that should be assigned to past precedents that contradict the original meaning of the Constitution. While we acknowledge the challenges to the court’s long-term resilience and the availability of suitable personnel, we are optimistic about the intellectual dynamism and moral conviction exhibited by the court’s conservative justices, which may ultimately lead to victory.
On June 27, John Yoo and Robert Delahunty will release their upcoming book “The Politically Incorrect Guide to the Supreme Court” (Regnery). Yoo is a law professor at the University of California, Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution. Delahunty is a Washington Fellow of the Claremont Institute’s Center for the American Way of Life.
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