Supreme Hypocrisy

Conservative justices’ shift from restraint comes at the worst possible time

In 2023, the U.S. Supreme Court stopped President Joe Biden from wiping away almost $500-billion worth of student loans. The relevant law just wasn’t clear enough to allow it, the court decided, especially when so much money and such a major policy question were at stake.

This rule – the major questions doctrine – was new, only a year old, but the decision prompted Justice Amy Coney Barrett to explain in a separate opinion that it wasn’t really new at all. It was just a “common sense” application of her conservative colleagues’ bedrock commitment to interpreting any statute based on its text alone – so-called textualism. They were merely giving the statute “context.”

She was, let’s say, being disingenuous.

The truth is that nothing in the statute – the HEROES Act of 2003 – which gives the Secretary of Education authority to “waive or modify” student loans, says it doesn’t apply when the consequences are enormous. The six justices in the majority made that part up. Barrett couldn’t admit it, though, because she would have had to contradict her bred-in-the bone textualism and almost everything she had written as a law professor before joining the court.

So she’s a hypocrite, for sure. Turns out, though, she has lots of company. As the student loan case revealed, justices – on the right and the left – can shift from judicial restraint and textualism to an expansive view of the law and back again, depending on which side holds power. Most days, it does not matter that much; it’s just part of the law’s evolution. But at this moment, with conservatives’ newly elastic view of statutes and the Constitution dominating the Supreme Court and a lawless president in the White House, it matters a lot. Just how much may soon become apparent as the court ponders last week’s arguments against Trump’s sweeping tariff regime.

Most of us probably associate an expansive reading of the law – known pejoratively as judicial activism – with the ideological left, and judicial restraint with the right. That was surely accurate from the mid-1950s to 1970, when the Supreme Court under Justice Earl Warren was finding constitutional rights that many conservatives were surprised to learn existed. But as Professor Richard Re explains in a new article, there’s no inherent link between conservatives and restraint or liberals and broad discretion to interpret the law.

In reality, he writes, each side must engage in a little of both: restraint, because “for law to exist at all, something must be settled,” and discretion because flexibility is required to make the law work sensibly. The balance shifts depending on which side controls the Supreme Court and the courts generally. When, say, conservatives are on the outs, they restrain liberals with the letter of the law, but read the law more flexibly when they have the power to implement their own ideological agenda. Liberals do the same. It’s more complicated than that – a lot can depend on the issue at stake or the need to be consistent, and sometimes an ideological opposite will join the majority just to stay relevant – but that’s the gist.

Re traces how this has worked over the past seventy years or so, with liberal justices exercising broad discretion during the Warren Court era but more restraint as conservatives under chief justices Warren Burger and the William Rehnquist took over and grew adventurous. Republican presidents’ appointment of moderate justices like Sandra Day O’Connor and Anthony Kennedy and the absence of a significant majority on the court muddled the pattern a bit, and conservatives, steeped in Warren Court criticism, stayed relatively restrained.

Now, for the first time in decades, the court is not a justice or two away from flipping ideologically – and the right is taking gleeful advantage. Roe v. Wade? Gone. Chevron, the 1984 case in which a conservative court ceded interpretations of the law to administrative agencies? Gone. Rules against spewing greenhouse gases or exempting for-profit religious groups from Obamacare or committing crimes while serving as president of the United States? Gone, gone, gone.

This is obviously not judicial restraint, and in fairness, you could argue that conservative justices are just making the most of an opportunity that lefties on the Warren Court enjoyed for decades. Elections have consequences and all that.

But right-wing justices are flexing their ideological muscles at the worst possible moment. They are giving laws broad new meaning just as Donald Trump seems convinced that some laws have no meaning at all. In potentially tragic ways, their agendas align – the president demands more power, and the Supreme Court seems hell bent on giving it to him.

We may better understand the state of play when a decision in the tariffs case comes down. The president claims he can impose sweeping tariffs under the International Emergency Economic Powers Act, despite its, at best, ambiguous language. Will the court cite the major questions doctrine to block Trump, given that the tariffs are every bit as consequential as student loan forgiveness? It’s possible that the justices will find a way to appease him, but oral arguments last week suggest that not even this court will go that far.

In any event, if we had any doubt that, when it comes to Trump’s actions, the current court is out of step with mainstream notions of the law, the lower courts are setting us straight. Hundreds of district and appeals court decisions have blocked executive orders deporting immigrants, firing federal workers, and depriving the poor of food. The decisions have come from conservatives and liberals in equal measure – with judges appointed by Ronald Reagan and Trump himself writing some of the most powerful and stirring opinions lambasting the president.

In 2023, Joe Biden was just trying to wipe away student loans. Now, for this president and this Supreme Court, it’s the rule of law itself that seems the target.