The Roberts Court Is Taking an Even More Conservative Turn. Why?

What is the Supreme Court doing and why are they doing it? This summer it has been hard to say. Every time the highest court in the land puts a thumb on the scale for a capacious view of executive (read: specifically Donald J. Trump’s) limitless power, it contributes to the idea that the court cares not a lick about law, democracy, checks and balances, or even the future of the American experiment. On this week’s Amicus , Dahlia Lithwick spoke with Erwin Chemerinsky, dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley, School of Law. Lithwick asked Chemerinsky about her theory that the court’s current supermajority is behaving very differently than the Roberts court of even five years ago. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: I think we have to acknowledge that in order to get to where they want to go, the high court must willfully blinker itself to reality. The court, certainly the Roberts supermajority majority, seems absolutely willing to shrug off the reality that court orders are being ignored, the reality that this “emergency” doesn’t exist, the reality that the president does not have the power to do much of that which he seeks to do. But this is not, I believe, simply willful naivete, Erwin. This isn’t some kind of presumption of regularity, a belief that the Justice Department always tells the truth, and we assume that the administration is always working in the best interest of the country. This is something else. This looks and feels like a 6–4, sometimes 5–4, majority overtly assisting the Trump administration.

Erwin Chemerinsky: I think what you have is a very conservative president governing in a very conservative direction with six very conservative justices. In a lot of instances, they agree with what he’s doing. In a lot of the instances, they want to support what he’s doing because he is their president.

Let me give you an example that supports what you’re saying, going back to the voting area. After Louisiana v. Calais , the Supreme Court made it much harder to enforce the Voting Rights Act, but the one path the Supreme Court left open was that there could be a finding of intentional race discrimination in redistricting, and that would be illegal and unconstitutional. So, a three-judge court finds that Alabama engaged in intentional race discrimination in drawing districts. It goes to the Supreme Court, and the Supreme Court says there wasn’t a sufficient presumption of regularity––there wasn’t sufficient deference to the Alabama Legislature.

It’s astounding to think we should give Alabama deference when it comes to claims of race discrimination, given its history. That was just the Supreme Court being very conservative and doing just what you said, ignoring the findings of the lower court.

So the tool kit that the Supreme Court has been using to support what Trump is doing—the court is manipulating standing, balancing harms, and claims of emergencies. An emergency is in the eye of the beholder, they suggest; standing is in the eye of the beholder. But I want you to remind folks that there’s actually doctrine on all this.