An Activist Court

Will there be any restraint?

News yesterday that a majority of justices on the Supreme Court would keep the abortion drug mifepristone legal, at least for the time being, was good for reproductive rights and frankly, the rule of law. But that this ever should have been a question is proof of how normalized once laughably fringe legal theories have become in our current judicial environment. 

The unhinged rationale behind this case, that somehow the FDA’s approval of a drug with decades of exemplary safety data could be tossed aside by a reactionary Trump-appointed judge with an anti-abortion vendetta, shows the rot of a system stacked with right-wing political actors wielding legal opinions in place of legislation and impervious to the will of the voters. 

Perhaps this trend might finally be hitting some resistance at the Supreme Court. Last night’s order blocks any national restrictions on the abortion drug pending the appeals process of lower courts’ decisions on the matter. Even though the court’s order was one paragraph and unsigned, court watchers say the message spoke volumes. As judicial reporter Mark Joseph Stern, who has been deeply critical of the court, noted, “the Supreme Court has now sent a very strong signal that it has little patience for this type of grievous abuse of the federal judiciary.”

We will have to see whether this move really marks a turning point. Maybe there will be more restraint by this court when it comes to radical rulings. Or maybe the facts of this particular case were just so egregious as to make even justices willing to entertain further abortion restrictions feel that this path had gone too far. 

The implications for the future go beyond abortion. On issues ranging from environmental regulations to gun control to almost any social, economic, or civil rights issue you can think of, the limits of what these justices will and won’t do remains much in question. Part of what made yesterday such a big deal was it marked one of the few times this court has shown hesitation from embracing far-right positions on contentious issues. 

For decades, Republicans rallied their base by decrying “activist judges.” It was a term that resonated at the same fever pitch that “wokeness” does now. The two have a lot in common. They both are meant to suggest that there is a conspiracy by unaccountable elites to undermine America’s “traditional” values by imposing extreme left-wing positions. 

Today, “wokeness” is being used to fire up voters to elect right-wing politicians, like school board members who will ban books promoting social justice, a respect for the LGBTQ community, and a reckoning with our history. “Activist judges” was similarly used to get voters to support Republican candidates at the state and federal level who would appoint reactionary true believers to the bench. The goal was to gut progress on civil rights and issues like abortion and guns. 

It worked. Polls showed that Republicans were motivated to vote for control of the Supreme Court. Democrats were not. 

But as is often the case with the current Republican Party, the scale of projection is enough to open a chain of movie theaters. The message, simply, is “activism is fine for me but not for thee.”

What could be considered more “activist” than what we have seen in recent years by Republican-appointed judges in federal and state courts? Sure, they can try to shroud rulings in legal justifications like “originalism.” But that’s just a sales job, the means to an end of drastically reshaping American society in ways that conveniently align with the views of the far right. 

The fiction that Supreme Court justices are just “calling balls and strikes” is now abundantly apparent. It’s why the court’s approval ratings are plummeting. The courts are meant to protect constitutional and minority rights. But that is not what is happening here. When you arrogantly overrule the beliefs of a majority of Americans on issues like abortion, guns, voting rights, and on and on, by contorting the law to fit your own unpopular beliefs, you’re not an umpire — you’re an activist. Wearing a robe doesn’t shield you from the judgment that you’re just another political hack.

Perhaps, in this latest abortion ruling, some of the justices are recognizing the peril of their disregard for precedent and the will of the country. Maybe some of the worst forms of activism will abate. But if that is the case, it is because the public has put the court on notice — “We’re watching.” 

The voices of protest are being heard. Especially at the ballot box. Will progressives be as animated by “activist judges” as the right once was? 

It’s a question that will shape America’s political future. Thus far, the answer has been yes. Will it continue to be so?

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