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Is the Supreme Court majority ruling on the law or their personal preference?


You know, I've been reading opinion articles about the Supreme Court. The conservative majority issued many big rulings last month. The biggest of them prompted accusations that the court has become a Republican legislature imposing its partisan opinions. In The Washington Post, Curt Levey made the opposite case, saying the justices are just applying the law. He is on the executive committee of the Federalist Society, which promotes a certain kind of conservative judge.

You write, this court is not ideologically motivated, which, of course, is hard for some people to accept because they just produced what can easily be seen as Republican outcomes on abortion rights, gun laws and climate regulation. Granted, some rulings have gone the other way, but the big ones all went one way in rapid succession. What's the case that those rulings are not ideological?

CURT LEVEY: Well, the case is that the court - if they wanted to decide all cases with a conservative outcome, they could have, and they didn't. Conservatives were very unhappy with their decision about the Remain in Mexico policy. They turned down a vaccine mandate case from New York. So the court could've been 100% conservative outcomes. And it wasn't. And if you look at why, it's because it's a textualist court. Some people like to call it originalist. I prefer the term textualist, but they're often used in the same way. If you want to understand why they ruled one way on guns and another way on abortion, it's because the Constitution contains an explicit Second Amendment that guarantees the right to keep and bear arms, whereas the Constitution - not only does it not contain a right to abortion. It doesn't even contain a general right to privacy.

INSKEEP: Are they always textualists or only sometimes?

LEVEY: Well, I think in this term, most of the big decisions - they went the textualist way. If what you're asking me is, do they ever show bias? - I'm sure they do. Again, this term, I think they were pretty straight down the line.

INSKEEP: In the same paper where you wrote, The Washington Post, there was another article by Adrian Vermeule - he's a law professor - who notes that from his perspective, the court majority abandoned textualism when they felt like it in the ruling against the EPA. There was text in the law that gave the Environmental Protection Agency authority to regulate, but the justices instead used a recent development called the major questions doctrine to say that they can stop a regulation when they feel it goes farther than they understand the law to allow.

LEVEY: Well, it's sort of a narrow version of textualism. If you look at what the Constitution actually says, it gives policymaking authority to Congress. There's no mention of the fourth branch of government that we now have. So even that fourth branch of government, with all the power that it has, is really extra-constitutional. But even so...

INSKEEP: You mean the administrative state, the bureaucracy. Is that what you mean by the fourth branch of government?

LEVEY: Yes, that is exactly what I mean by the fourth branch of government. So, you know...

INSKEEP: But let me just stop you there for a second because there is an executive who is allowed to run the government. And that's what you're referring to as the fourth branch of government. It's the executive. And Congress can delegate authority to them to do things.

LEVEY: Well, again, that's arguable. And I think that on small technical points, you probably do have to defer to bureaucrats as a - you know, as a practical matter. But on major questions, for example, whether an environmental agency was really meant to have the power to - you know, to regulate anything connected to climate change, that's something where people would ordinarily expect Congress to decide it, not bureaucrats.

INSKEEP: But there was language in the law that said that the EPA should come up with the, quote, "best system of emissions reduction," which they said they did. And the court majority decided they shouldn't.

LEVEY: And again, I think, you know, I certainly don't...

INSKEEP: It was the text.

LEVEY: I do not mean to say that there's not, you know, room for debate there. But again, I tend to favor, as an originalist and a textualist - I believe, you know, that where it's not clear, you generally defer to the structure and intent of the Constitution, which is, again, for Congress to make policy.

INSKEEP: And just to be clear, the major questions doctrine is a recent development of conservative legal scholars that does not appear in the Constitution. Is that correct?

LEVEY: There is no - absolutely no mention of the term major questions.

INSKEEP: I wonder if this matter of ruling where it's not needed also is applicable to the abortion ruling. Justice Roberts, who joined part but not all of that ruling, said that it was possible to uphold the Mississippi abortion law that was at issue without completely overturning Roe v. Wade. And he said that's what he would rather have done, quote, "out of adherence to a simple yet fundamental principle of judicial restraint, if it is not necessary to decide more to dispose of a case, then it is necessary not to decide more." The other five justices decided they felt like going further to overturn Roe v. Wade, which is something that the presidents who appointed them explicitly said they would do.

LEVEY: There is - again, there are countervailing forces there. I think what Roberts said as a general principle is correct. But it's also correct that the whole scheme behind Roe or anything they had come up with now, you know, drawing the line effectively at 15 weeks - because that's what the Mississippi law did. So if they just upheld the Mississippi law without more, we effectively would've had a line at 15 weeks. The problem is there's just no basis for that in the Constitution.

INSKEEP: Is there something revealing in the tone of some of the recent rulings? Justice Alito in the abortion ruling didn't just say that Roe v. Wade was mistaken. He said it was, quote, "egregiously wrong." He doesn't only say that other justices are mistaken about this. He says they know they're mistaken. They know he's right. And they're making up arguments to hide the fact that they know that they're wrong. That wasn't in any way neutral language.

LEVEY: No. No. And, you know, sometimes, the opinions do do get heated. I sort of miss the days when they used to read the decisions from the bench because then you could really tell the emotion of the justices. You know, I can only tell you my point of view on this, but I'm not even an abortion activist. But I always - Roe always frankly made me angry because it's such a made-up doctrine. There's just absolutely no basis for it in the Constitution. And so, you know, the fact that it had survived that long really did make me angry. And I have to assume that, you know, Alito and the others felt the same.

INSKEEP: Curt Levey is president of the Committee for Justice and is on the executive committee of the Federalist Society. Thanks so much.

LEVEY: Thank you so much. I enjoyed talking.

(SOUNDBITE OF TINGVALL TRIO'S "COWBOY") Transcript provided by NPR, Copyright NPR.