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SCOTUS Conservative Majority 'Restless' To Recalibrate Constitutional Law



The conservative majority of the Supreme Court is making broad changes to American law on a tight timeline in moves that are giving the public, and even several justices, pause, Courthouse News reports. “I would call the majority restless,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in a phone interview. “It’s not only wanting to have a very firm conservative stamp on the court, but it is impatient and won’t wait for the right cases to do that and won’t use an incremental approach.”


Just a week after the court threw out New York’s concealed-carry restrictions last month, it voted 6-3 to limit the Environmental Protection Agency’s ability to regulate pollutants that contribute to climate change. While doing so, the majority made it a point to endorse a controversial doctrine that hamstrings the authority of the administrative state. Experts were critical of this EPA decision both because of its breadth and because of its basis on an outdated regulation the government has no intention of using again.


“This court’s majority is making fundamental changes to the law as fast and broadly as it can,” said Richard Bernstein, an appellate lawyer who filed an amici brief before the court in a challenge to New York’s concealed carry regulations. Bernstein continued: “The repeated haste and broad reach of this court’s majority is not how conservatives act. It is, unfortunately, characteristic of how ideologues pursuing radical changes act when they attain power.”


The EPA case wasn’t a fluke. Chief Justice John Roberts admonished the majority in the court’s blockbuster Mississippi abortion case for a similar inclination. Roberts said the court wasn’t following the “simple yet fundamental principle of judicial restraint.” This principle argues in favor of ruling only on what is needed to decide a case. “If it is not necessary to decide more to dispose of a case, then it is necessary notto decide more,” Roberts wrote. This criticism from Roberts was related to the majority’s ruling overturning the court’s landmark precedent in Roe v. Wade. When the state initially petitioned the justices, they made a point to not challenge Roe directly. Mississippi only urged the justices to throw away the precedent after the ascension to the court of Justice Amy Coney Barrett. Roberts called it shortsighted for the court to reward such a gambit.


While experts say the conservative majority’s rulings were for the most part predictable, the speed at which they’ve tackled a broad swath of American law was surprising. Barring unforeseen circumstances, the conservatives will have the majority on the court for decades. The majority’s willingness to turn a blind eye to judicial restraint in this way, experts say, demonstrates the justices’ arrogance.

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A daily report co-sponsored by Arizona State University, Criminal Justice Journalists, and the National Criminal Justice Association

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