How Political Is This Supreme Court?

I don’t know. Maybe. Perhaps. That’s reading a bit into it, yeah.

I’m just saying, when you say you’re messing with markets, that stuff matters to politics. But anyway, you wrote this piece downplaying the idea that the four least conservative of the six conservative Justices were acting politically the way the other five Justices were, and you seemed dismissive of people who describe the Court as political. So how would you describe something like the Fed decision?

My argument is that the Court is neither entirely political nor that it is entirely apolitical. I think we have to be a little more nuanced in the way we go about this. First, how do we define political? I think, generally speaking, that criticism means this is a 6–3 conservative supermajority, and when push comes to shove on all the big things, they’re just gonna go 6–3 for Trump. I think what we all basically mean when we say a Justice is being political is that they’re starting from the bottom line. They’re starting from the political or policy or real-world outcome, and then reverse-engineering the legal analysis, the math calculation, to give them the desired result. And I think what we mean when we say that Justices are being nonpolitical is they’re just doing some faithful version of the math equation, and living with the result, whether it aligns with their ideology or not.

Thomas and Alito, on all the major cases, somehow come to a result that’s pro-Trump or pro-conservative. Not once in any major decision this whole term did they reach a decision that gave us a liberal outcome, or that harmed Trump, or that was against the Administration. And essentially, the exact opposite applies to the three liberal Justices. The only real exception is that they gave a split ruling on the transgender athletes case, where all three liberal Justices agreed with the conservatives that state laws banning transgender athletes comply with Title IX, but dissented on whether it complies with equal protection.

I’m not saying that the other four are perfect paragons of judicial impartiality, and that ideology never factors in. I am saying that, on a substantial number of very high-stakes cases, we saw two or more of those four Justices reaching results that go against their conservative ideology, that yield nonconservative, anti-Trump, pro-liberal outcomes. I don’t think there’s any way to ignore that. If all nine Justices just did what I accused the five political Justices of doing, the world would look very different right now. Like, this isn’t just an academic argument. We would have more tariffs in place, and have a substantially narrowed version of birthright citizenship. We’d have no allowance for mail-in ballots coming in after the date of the election. We’d have National Guard on the streets in Chicago and perhaps elsewhere. We’d have very limited access to mifepristone. So, it really does make a difference.

In your piece, you say those four are the only ones who’ve shown “any ability to dispassionately assess the law.” And you used some of the cases that you just mentioned to me as examples. It seemed to me, when you described the Fed case, that the Justices in the majority were not dispassionately assessing the law. I thought that you were saying they were making a political decision, maybe a smart political decision, maybe a reasonable political decision, but a political decision.

My argument is not that Kavanaugh, Barrett, and Roberts never take politics into account. Kavanaugh does explicitly take policy into account in that Lisa Cook decision, which I think is an outlier. I’m not saying Justice Kavanaugh is a perfect paragon of judicial neutrality. All nine Justices let policy considerations animate and drive them to differing degrees, and I think what was unusual about that is that Kavanaugh said it out loud. There are other cases, though, where Justice Kavanaugh clearly comes out in ways that are not conservative, right? And look, the liberal Justices, too, are often explicit about how a decision would yield terrible policy.

I’m definitely not arguing that the liberals are not political, too. Isn’t it possible that someone like Justice Roberts is making political decisions, but he’s just not the extreme conservative that Donald Trump or Clarence Thomas is? So he could be making his decisions based on his ideology, and, as one lawyer said to me when I was talking to him before this interview, his politics are those of the Reagan Justice Department in the nineteen-eighties, which was conservative and political but not exactly MAGA. And so he’s making decisions based on that ideology, and that means he votes with Clarence Thomas most of the time, but not always. But that can still be political, right?

Well, that’s interesting. I’m just trying to think about which example would work best here.

I’m sure John Roberts thinks tariffs are a stupid economic policy.

I don’t know, but I guess here’s what I would say. I have no doubt that John Roberts is animated by institutional concerns on top of everything else, right? John Roberts plainly does not want to go down as the Chief Justice under whom this Supreme Court became hopelessly divided, with the automatic 6–3, the automatic pro-conservative outcome. And he has gone out of his way to broker outcomes within the Court to wheel and deal.

Aren’t you describing politics?

Yeah, listen, don’t get me wrong, I am not saying Roberts, Barrett, and Kavanaugh are pure beings who never consider politics. But I think there’s a difference between institutional politics and engineering policy-real-world outcomes, right? Institutional politics happens every day between and among all nine Justices, right? But look, if Roberts’s goal was to undermine the wide perception that this is just a hopelessly, ideologically split 6–3 Court, I think he made progress in that. I think he’s got several powerful exhibits he can point to. Now, whether his motivation was simply to calm the Court’s critics, or to do something else, I don’t know.

There is also the additional political issue of when you look at his decision helping to save Obamacare, or his compromise on the Dobbs abortion case, he seems like someone who’s wheeling and dealing, yes, but also, I think, in a more cynical way, doing things that are almost always helpful to Republicans. Getting rid of Obamacare would have been bad for Republicans. The Dobbs decision was bad for Republicans. Allowing Trump to declare insane levels of tariffs would have been really bad for the economy and bad for Republicans. I think Trump getting control of the Fed would have been bad for Republicans.