The Supreme Court’s Conservative Contortionists

It is truly remarkable to see the crazy contortions that the Supreme Court’s five conservative justices have to go through in order to support their political goals. Hypocrisy doesn’t really adequately describe it. It is more an expression of raw judicial power, where the five conservatives no longer pretend to be logically or legally consistent. Two recent cases, one involving the Wisconsin election and the other a challenge to a rescinded New York State gun regulation, vividly illustrated these contortions in stark relief.

The New York case, New York State Rifle & Pistol Association (NYSRPA) v. New York, also highlighted the bankruptcy of conservative legal opinion. The case revolved around a New York City gun ordinance that prohibited gun owners with licenses for guns to be kept at home from taking those guns to shooting ranges or second homes. One of the principal arguments the NYSRPA offered in the case is that the “right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use” which should therefore allow transport to shooting ranges. Of course, for decades, constitutional conservatives have been stressing their supposed adherence to “originalism” and opposition to any rights that might be “implied” beyond the exact words of the Constitution. In fact, conservative opposition to abortion specifically relies on a rejection on the implied “right of privacy” established by the landmark case of Griswold v. Connecticut.

By the time the case got to the Supreme Court, New York had already rescinded the ordinance in question, effectively making the case moot, and the Court accordingly dismissed the case. Bizarrely, three conservative justices, Alito, Thomas, and Gorsuch, dissented from the decision to dismiss the case, writing, “This case is not moot. The City violated petitioners’ Second Amendment right, and we should so hold…if we reversed on the merits, the District Court on remand could award damages to remedy the constitutional violation that petitioners suffered”. But the petitioners had only asked the Court for an equitable remedy, namely an injunction to prevent the ordinance from being enforced. They had specifically not asked for legal relief in the form of damages.

That may seem like a minor point, but it was critical for those same conservative justices in the RNC v. DNC case involving the Wisconsin election. In that case the Supreme Court, in a 5–4 decision, stayed a lower court’s decision to extend the date for receipt of absentee ballots for six days. That decision was driven by the overwhelming number of requests for those ballots that had not yet been processed thanks to the ongoing COVID-19 pandemic. As the conservative majority’s opinion makes clear, the principal reason for staying the lower court’s decision was that it provided relief that the plaintiffs, the DNC, did not specifically ask for. They write, “Importantly, in their preliminary injunction motions, the plaintiffs did not ask that the District Court allow ballots mailed and postmarked after election day, April 7, to be counted. That is a critical point in the case…By changing the election rules so close to the election date and by affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions, the District Court contravened this Court’s precedents and erred by ordering such relief.”

Considering the majority believed this was such a critical point, it is remarkable that so much of what they stated was simply factually incorrect. First, there is no postmark requirement in Wisconsin election law, only a requirement that the ballots be received by a certain date. With this ruling, the conservatives enacted an entirely new standard for Wisconsin elections out of thin air. Nothing says “originalism” like writing new state election law. In addition, it was understood by the District Court, the RNC, and the DNC that the DNC had indeed specifically asked for ballots potentially mailed after April 7th be counted. Be that as it may, the conservative majority, which included the aforementioned Alito, Thomas, and Gorsuch, specifically cited the fact that the District Court erred by offering relief that the plaintiffs had not asked for.

That directly contradicted their position when it came to the Second Amendment gun right’s issue where the three endorsed the view that the District Court could award damages even though the plaintiffs had clearly not asked for that. As Leah Littman neatly summarized, “When you put the two decisions together, they seem to say something like: It is okay for courts to award plaintiffs in Second Amendment cases relief they didn’t explicitly seek, but it is not okay for courts to award plaintiffs in voting rights cases relief they didn’t explicitly seek (even when not awarding that relief could force those voters to the choice between not voting or voting and contracting the coronavirus). That’s hardly a defensible principle.”

While not as egregious, but certainly more deadly, these conservative contortions were also on display in two death penalty cases last year. In Alabama, a lower court had agreed to stay the execution of a death row inmate because he asked for an imam to be present at his execution. The state of Alabama only offered those being executed a Christian minister but refused to proved any representative for other faiths. The Supreme Court, with the five conservative justice providing the majority, denied that lower court’s stay and the prisoner was executed. The backlash to this overt religious discrimination from the Court was immediate, not only from religious leaders but also from legal scholars, with one former Solicitor General putting in the pantheon of the Court’s most racist decisions along with Dred Scott and Korematsu.

A few weeks later, an almost identical case from Texas arrived at the Court. Again, a lower court stayed the exection of a man who had requested a Buddhist spiritual adviser be present at his execution. The state of Texas only offered Christian or Muslim spiritual support. Apparently chastened by the outrage of the Alabama case, Roberts, Kavanaugh, and Alito all joined the liberals in granting the stay of execution. (Texas being Texas, rather than provide Buddhist spiritual support, the state changed the law to offer no spiritual support to anyone being executed, an idea provided by Kavanaugh in his concurring opinion.)

As one conservative legal scholar admitted, it was a “mystery” why Roberts, Kavanaugh, and Alito had managed to change their positions 180 degrees in just a few days, but it was likely “the justices saw the extremely negative reaction against their decision in Ray [the Alabama case], and belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the Court’s reputations”.

These legal contortions have convinced many that the Court’s conservatives often act with political motivations rather than legal principles, a belief that is shared by some of the liberal justices. Recently, after granting an unprecedented number of emergency stays in appeals by the Trump administration, often before lower courts had even finished their consideration of the issues, Justice Sotomayor sounded off, writing in a dissent on an immigration case, “Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited Court resources in each. And with each successive application, of course, its cries of urgency ring increasingly hollow…Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others”.

This is exactly the result that Justice Kagan openly worried about as Kavanaugh was being considered for the Court. At a symposium at Princeton, she fretted, “All of us [Justices] need to be aware of that — every single one of us — and to realize how precious the court’s legitimacy is. It’s an incredibly important thing for the court to guard is this reputation of being impartial, being neutral and not being simply extension of a terribly polarizing process…To the extent we can avoid ruling in such expansive ways as to foreclose continued conversation, I think we have a chance of holding onto our legitimacy”. That has not happened.

It is bad enough that the Court’s five conservatives are prepared to overturn decades or even centuries of settled law simply because they can. As Ian Millhiser writes, “As the late Justice Antonin Scalia once quipped, [Justice] Thomas ‘does not believe in stare decisis, period.’ The Supreme Court’s longest-serving justice does not feel bound by past precedent…He is also a man unbound by either text or Supreme Court precedent. And he just convinced four of his colleagues to join him for the ride”. What’s worse is the five conservatives don’t even bother to be logically consistent from one case to another. In fact, they don’t even bother to try. And with each new conservative contortion, with each new 5–4 decision that overturns years of precedent, this Court creeps ever closer to crossing the boundaries of its legitimacy.

Originally published at on May 1, 2020.

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