Background of the Roberts Court: Conservatives Turn the Clock Back

Abstract

The United States Supreme Court was established in 1787 along with the executive and legislative branches of government. Much of the Court’s authority emanates from what Congress has provided. The Court is a fragile institution in comparison to the legislative and executive branches, which have the power of the purse and the military, respectively, to insulate them in the establishment of American government. The Court is required to rely on its apolitical jurists to decide some of the nation’s most important legal contests, which gives the Court its legitimacy. With President Trump’s election in 2016, the conservative judicial agenda was enshrined with the appointment of Justices Gorsuch, Kavanaugh, and Coney Barrett. Added to the already conservative contingent on the Court (Justices Roberts, Thomas, and Alito), the conservative ideology has acquired a supermajority at the nation’s highest court. During this same period, the Court has attained some of its lowest approval ratings in its history. This is largely due to the obfuscation of legal perspectives of judicial nominees during confirmation hearings compared with how they rule, the erosion of stare decisis, and potential ethical violations by several Justices. Several of the Justices have elaborated on their disagreement regarding prior rulings, going so far as to write and discuss their desire to have cases brought before them, which provide the conservative Justices with a method to overturn some of the decisions the conservative bloc despises.

[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.

—Alexander Hamilton in The Federalist Papers: No. 78

[I]n future cases, we should reconsider all of this Court’s substantive due process precedents … Because any substantive due process decision is ‘demonstrably erroneous.’

—Justice Clarence Thomas concurring in the 2022 Dobbs decision