This Supreme Court Is Bad, But It’s Nowhere Close To Being America’s Most Radical Or Right-Wing

Confidence in the Supreme Court has slipped to its lowest level since Americans began being surveyed on this topic 50 years ago.

(Photo by Staci Zaretsky)

This Supreme Court has problems. Oh, it almost seems quaint now that the biggest scandal for the nation’s highest court a year ago was that someone there leaked a draft opinion.

Of course, what that draft opinion said ended up being pretty much the same substantively as what the final opinion said, which was that half a century of Supreme Court precedent was out the window and Roe v. Wade was overturned.

Turns out people don’t really like having their constitutional rights taken away, especially not by a scandal-plagued Court that only even has a conservative majority because Mitch McConnell stole two seats on it. Then we find out that the Supreme Court’s longest-serving and most right-wing justice has been taking and failing to disclose as required by law what look an awful lot like bribes.

It’s not great. No wonder confidence in the Supreme Court has slipped to its lowest level since Americans began being surveyed on this topic 50 years ago.

All that being said, we absolutely do live in more sensitive times than Americans of ages past. Different Supreme Courts in different eras were way more radical and right-wing.

There was the Dred Scott decision, which in 1857 declared all Black people, whether enslaved or free, to be noncitizens and required enslaved people who made it to free states to remain property.

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OK, I concede, citing what’s widely considered the worst decision in U.S. Supreme Court history is low-hanging fruit. Still, even after the Civil War the nation’s highest Court thwarted Reconstruction and was pretty much solely responsible for allowing another century of egregious civil rights violations in the South. Remember “separate but equal [only, you know, not really equal either]”? That was a Supreme Court thing.

Well into the 20th century the Supreme Court mostly sided with moneyed interests, corporations, corpulently endowed landowners, and all manner of mustache-twirling villains. The Supreme Court of the golden age of industrial capitalism basically said regulating a business amounted to confiscating it. It ruled that progressive income taxation was unconstitutional (it took a constitutional amendment, the 16th, to fix that).

Not so long ago, Supreme Court justices regularly approved so-called “Gatling-gun injunctions” with broad and vague calls to authority, which were gleefully utilized by company managers to crush organized labor strikes, often with the help of armed federal troops. Many people were killed. This was all after a number of Supreme Court justices padded their pockets as lawyers for the railroad and steel industries before donning their robes to rule on cases directly affecting their former clients.

It took a threat from the force of nature that was Franklin Delano Roosevelt to add a new (handpicked) justice for every one not retired by age 70 — thereby increasing the size of the Supreme Court from nine justices to as many as 15 — to finally start to turn things around. Although FDR’s 1937 court-packing proposal never came to fruition, just the introduction of it was enough to convince a couple justices to switch sides and to stop striking down every part of his progressive New Deal agenda. Slowly, the Supreme Court began to resemble something more recognizable to modern eyes.

Today’s Supreme Court is bad for a number of reasons. Whether it’s corruption, incompetence, lying under oath in their confirmation hearings, lacking respect for precedent, or a complete absence of sympathy for real people dealing with problems in the real world, you can pick your poison and find it on this Supreme Court. That being said, the current iteration of the Supreme Court only appears especially bad to us because so many of us were around to celebrate a number of relatively recent decisions that actually bolstered civil rights and in which the Supreme Court actually sided with everyday people.

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It is probably true that this Supreme Court is the most conservative Supreme Court since the 1930s. But it’s certainly not the most conservative or radical Supreme Court ever. Anyone making that claim online is forgetting about a great deal of dark and important history.

I, for one, don’t think we need any more pessimism though. There’s a lot of negativity out there about how we’re just stuck with this Supreme Court now for decades and there’s no way to do anything about it. I understand not feeling good about this Supreme Court term. Yet, FDR didn’t take shit from his radical right-wing Supreme Court. We don’t have to either. They work for us.


Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.