Right-Wing Judges Are Empowering Themselves With One Weird Bad-Faith Trick

There is no institution in the United States government that operates with more bad faith than the Supreme Court.

I say this knowing right-wing ghouls like Marjorie Taylor-Greene roam the halls of the U.S. Congress, spewing bad faith arguments to whichever shitty media outlet will listen and publish her specious claims without a shred of skepticism or context. I say this having watched five people ascend to the presidency mostly on bad faith promises they knew they’d never keep. But the Supreme Court, as currently constructed, relies on bad faith to justify its very existence.

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John Roberts, the chief justice who has overseen the Court’s extreme rightward turn, will have you believe that the justices are just umpires, calling balls and strikes, never interfering with the game of politics. While that has never really been true (the Court has always been a political institution), the rulings unleashed upon America over the past four years by this radical cabal have put to bed any notion of an apolitical Court. No matter what your favorite progressive agenda is: abortion rights, labor rights, union organizing, environmental protections, etc., this court has shown no inhibitions about overturning or blocking progress made by the left. It doesn't matter if there is no legal precedent, it doesn't matter if they have to overturn decades of precedent, they will use whatever flimsy justification they can to enact the Republican Party’s far-right radical agenda. The Court's conservative justices are working hand in hand with the party. This is painfully clear to anyone and everyone paying even passing attention to the Roberts Court's rulings.

While there were many egregious decisions made by the Court on this year’s docket, most notably the justices proclaiming the president a king who is above the law, there was one case in particular that laid their bad faith bare and will have massive impact on people’s lives, crippling the government’s ability to regulate industry. In a relatively obscure case involving the financial burden of fishing vessels, the Court ruled 6-3 against forty years of precedent to overturn the Chevron Doctrine. First ruled upon in 1984, the Chevron Doctrine argues that in cases where the law is unclear, courts should defer to the opinions of the experts who staff the federal agencies. For example, most environmental laws passed by Congress don’t get into the specifics of how much of this or that chemical substance should be allowed in drinking water. It simply gives the EPA broad authority to set the acceptable levels. When a capitalist brings a lawsuit saying it should be allowed to pollute our drinking water, judges have shown deference to the EPA’s authority. That will no longer be the case. 

What this amounts to is an effective neutering of the so-called administrative state, an enemy of the capitalist class for generations. Under this ruling, courts will have the ability to overrule most regulations, from workplace and environmental safety to consumer protection. No longer will experts determine what amounts to a safety hazard at a workplace; instead it will be decided by judges drawing arbitrary lines depending on in which court the case is heard. We’re about to see a slew of lawsuits trying to overturn every regulation imaginable, most of them funneled into the ultra-conservative Texas 5th District Court, which will overturn whatever regulation businesses tell them to.

For more on the Supreme Court's use of bad-faith legal analysis, check out Denny Carter's piece from February

The conservatives of the Supreme Court argue that it is up to Congress to make laws, not federal agencies, but this argument is pure bad faith. They know that asking Congress to pass a law listing every chemical in water or blocking every way businesses fuck over consumers is too much. That is what they are depending on. They don't mean what they say here. It is the very definition of bad faith.

At first glance, the two major rulings that came out this past month seem to contradict each other. On one hand, the president is a monarch who could order the military to assassinate his political rivals without risk of prosecution. On the other hand, federal agencies empowered by both Congress and the presidency don’t have the right to tell businesses how many hand washing stations they have to have in a meat processing plant. But there is one throughline to both of these rulings: They empower the judiciary. 

For over forty years, the American right has focused on domination of the judiciary. With a longview that is foreign to most of us on the left, the right has stacked the judiciary with ultra right-wing assholes, waiting for their moment to strike. Now that they have a commanding 6-3 majority, they are looking to give more and more power to the judges they have put in place. Rather than an expert telling you whether the water is safe to drink, it will be a right-wing judge who spends his day scrolling through Facebook memes deciding what is safe. Rather than the law telling you whether or not a president should be prosecuted, it will be up to a judge who watches eight hours of Fox News every single day to determine if whatever the president did was an "official act."

It will now be activist judges who define law, not Congress or the executive branch. Make no mistake, every piece of progressive legislation passed for the next twenty years will be scrutinized and overturned by a Supreme Court that now has one motivating principle: Stop and roll back progress. It is the culmination of the backlash to the New Deal, and it's going to make life noticeably worse for every middle and working class American.

This is usually when I tell you what we can and should do about this. Unfortunately, there isn't a lot we can do. While the right had a laser focus on the judiciary, liberals and leftists have largely ignored it. We are witnessing a forty year project by the right bearing fruit, and many Democrats refuse to acknowledge it is happening. Feckless cowards like Senator Dick Durbin are living in an imagined past where the Supreme Court stood above partisan lines. Durbin won't even call a hearing to explore Clarence Thomas and Samuel Alito’s obvious and well-documented corruption and conflicts of interest. 

What we need to do is reform the Court, but there seems to be very little interest from our representatives in doing that. The best (only) thing we can do right now to affect the court is vote for Democrats, despite their cowardice, and hope they will nominate and appoint far better judges than the alternative. Thankfully, the Biden administration got the message and appointed judges at a pace that exceeded both Trump and Obama, who, tragically, didn't seem all that interested in countering the right wing's takeover of the judiciary.

We’re going to be in this fight for a long time, even longer if Trump wins a second term, and we need to view it that way. We need to elect politicians who believe in reforming and expanding the Court. We need to get our hands dirty the same way the right did for the last four decades. Most of all, we need to stop pretending that the Court is some high-minded institution impervious to politics. The Supreme Court is an instrument of power, nothing more, and we need to treat it that way.

Follow Anthony Reimer on Twitter at @mrmeseeksff.