by Mitch Kokai
Senior Political Analyst, John Locke Foundation
When President Biden extended the eviction moratorium earlier this month, he was openly flouting the Supreme Court, which made it clear in June that new legislation would be necessary for an extension.
Such blatant defiance of the high court is so rare that constitutional scholars look back to Presidents Franklin Roosevelt, Abraham Lincoln, and Thomas Jefferson for examples. That leftists cheered this slap at court authority evinces something deeper than rank politics.
Since at least the Warren Court, conservatives have usually been the ones talking about standing up to the Supreme Court, accusing it of amassing too much power. Leftists, on the other hand, celebrated the court’s power to rewrite the Constitution in service of abortion, LGBT activism, and the like.
That dichotomy has blurred. When I testified recently before President Biden’s commission on Supreme Court reform, I was struck by how many of the leftist witnesses sounded like conservatives as they decried the court’s overreaching power and discussed ways to constrain it. Suggestions of court-packing aside, this shared perception presents an opportunity for conservatives.
In his testimony, Yale Law School professor Samuel Moyn denounced the current state of Supreme Court jurisprudence, in which we give the court “the last word over large parts of our national political conversation” and “pretend that doing so is either mandated by our Constitution or essential to democracy.” Conservatives upset with the court’s abortion and same-sex marriage rulings couldn’t say it any better.
It was startling to hear Harvard Law School professor Nikolas Bowie support “proposals to disempower the federal courts,” while citing the need to “eliminate hierarchies of race, wealth, and status.” Similarly, Moyn supported “reforms that seek to curtail and manage the [court’s] power.”
Leftists have even adopted the common conservative complaint that the Supreme Court represents elite values.