The conservative justices’ incessant drive to radically enhance the court’s power

 Simon Lazarus, Robert Litan: As the first term of the Mitch McConnell–engineered 6–3 right-wing Supreme Court supermajority drew to a close last week, most liberal observers expressed qualified relief. With some exceptions—in particular, the last day’s evisceration of Section 2 of the 1965 Voting Rights Act and simultaneous invalidation of California’s donor-disclosure mandate for charities operating in the state—the assessment was that the decisions were, overall, less “conservative” than had been anticipated. The Economist summarized the state of play by announcing (albeit before the last day’s bombshell decisions) that this is a 3–3–3 court now, with an emerging middle consensus centered around Chief Justice John Roberts. This take is oversimplified and much too rosy.

The problem is that these observers have focused on particular substantive issues at stake in the highest-profile cases: the Affordable Care Act was saved, 7–2; religious claims were held not to automatically or presumptively trump laws barring anti-LBGTQ discrimination, again, 7–2; the National Collegiate Athletic Association was subjected to surprisingly strict Sherman Act strictures against price-fixing, applicable to all other “industries,” this time unanimously. Indeed, such results were positive and should be welcomed. But there is an underlying agenda embedded in the fine print of some of the court’s hot-button cases, as well as, more often, in less noted decisions, that’s been overlooked.

What these critics have missed is the conservative justices’ incessant drive to radically enhance the court’s power—power in opposition to Congresses past, present, and future; as well as against the federal executive branch and state and local governments. This historic trend, steadily gaining momentum over the 16-year span of John Roberts’s tenure as chief justice, escalated sharply in several end-of-term decisions. In these, the court’s dominant bloc—which President Ronald Reagan’s solicitor general, Charles Fried, labeled “reactionaries,” not conservatives—asserted for this court power on a level and scale unprecedented in the nation’s history: power de jure as well as de facto.