For Supreme Court liberals, some precedents are more equal than others

OPINION:

Some judicial precedents are apparently more equal — and more sacrosanct — than others, at least in the eyes of the liberal justices of the Supreme Court.

What else can we conclude, for example, from Justice Elena Kagan’s dissent in the court’s recent ruling in Loper Bright Enterprises v. Raimondo or from Justice Ketanji Brown Jackson’s dissent in Corner Post v. Board of Governors of the Federal Reserve System?

The June 28 Loper decision belatedly jettisoned “Chevron deference,” which stemmed from the court’s misbegotten 1984 decision in Chevron v. Natural Resources Defense Council.

Chevron was a deeply flawed precedent that had empowered an unelected and unaccountable bureaucratic regulatory state for the past 40 years. It had not aged well over the ensuing four decades, but that was of scant concern to the court’s three lockstep liberals. Their opposition notwithstanding, the 6-3 majority put Chevron deference out of our misery.

Sen. Tom Cotton, Arkansas Republican, called Loper Bright a “huge victory for the American people, constitutional government, and the rule of law.”

“It’s a huge blow to the administrative state in Washington, D.C. No one elects bureaucrats to make these decisions,” Mr. Cotton said.

In Loper Bright, federal bureaucrats had preposterously compelled “a family fishing company not only to allow a fishing monitor onboard their ship but also forced them to pay the salary of this monitor, even though the law passed by Congress imposed no such requirement,” wrote Sen. Ted Cruz, Texas Republican, who led an amicus brief on behalf of the plaintiff.

Tossing Chevron was the right thing to do after it was repudiated by conservative Justice Antonin Scalia — who had initially supported it but was appalled by how it had evolved over time. Apparently, however, the liberals on the court didn’t get the memo.

Justice Kagan’s dissent in Loper was cited approvingly by Washington Post columnist Ruth Marcus, who denounced the decision as a power grab on the part of the court’s conservative wing. Loper was “yet another enhancement of judicial authority over the coordinate branches [of government],” Ms. Marcus complained.

It was nothing of the kind. Rather, it was a legal shot across the legislative branch’s bow, telling lawmakers they shouldn’t be so lazy in writing bills that leave ambiguous legislative intent to the interpretation and discretion of an unconstrained executive branch — in this case, the alphabet soup of federal regulatory agencies.

The July 1 ruling, also 6-3, in Corner Post likewise dealt a huge blow to the regulatory state — to the chagrin of the three liberals.

These long-overdue and commonsense decisions came just over two years to the week after Justice Kagan, along with fellow liberal Justice Sonia Sotomayor, similarly dissented in June 2022 from the high court’s conservative majority’s ruling overturning 1973’s Roe v. Wade, which legalized abortion nationwide. (Ms. Jackson was not on the court at the time but almost surely would have concurred with them.)

Justice Kagan, Justice Sotomayor and Ms. Marcus complained then, and presumably still do, that Dobbs vs. Jackson Women’s Health Organization — which merely sent the issue of abortion back to the states, where it had been and where it belongs — had desecrated an inviolable half-century-old precedent.

But the justices’ and Ms. Marcus’ devotion to the sanctity of long-standing precedent (“stare decisis” in judicial-speak) — and their disdain for judicial power grabs — are at best highly selective.

None of them had any such qualms in 2015 when the court’s then-four-member liberal bloc (Justices Kagan, Sotomayor, Ruth Bader Ginsburg and Stephen Breyer) was joined by a Republican appointee, Justice Anthony Kennedy, in dismissively relegating 3,000 years of precedent in Obergefell v. Hodges to the ash heap of history. The last time I looked, 3,000 years was longer than 40 years (Chevron) or 50 years (Roe).

The 5-4 Obergefell decision discovered an until-then-unknown right to same-sex marriage, presumably in some sort of “an emanation from a penumbra” of the Constitution. That was then-Justice William O. Douglas’ judicial contrivance for the court’s 1965 Griswold v. Connecticut decision, wherein it discovered a nowhere-to-be-found “right to privacy” in the Bill of Rights in striking down that state’s birth control law.

Of course, Justices Kagan, Sotomayor and Jackson were not on the court in 1965, but does anyone seriously doubt they would have concurred in Griswold if they had been?

That’s not to say, however, that on rare occasions, there’s no question a flawed previous court decision shouldn’t be chiseled in stone and never overturned. The best example of that is 1954’s Brown v. Board of Education, which overturned 1896’s Plessy v. Ferguson of “separate but equal” infamy. The decision was so obviously wrong that Plessy was tossed 9-0 after 58 years.

But Justice Kagan was way off-base when she opined that the court’s overruling of Chevron had made a “laughingstock” of stare decisis.

On the contrary, the judicial philosophy of the court’s liberal troika is the real laughingstock. Their judicial philosophy appears to be stare decisis for you but not for me.

Philosopher-poet Ralph Waldo Emerson observed in 1841, “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” In this case, precedential inconsistency appears to be adored by the court’s liberal judicial divines.

• Peter Parisi is a former editor with The Washington Times.