Professor: Supreme Court’s actions could erode confidence in rule of law

PULLMAN — Recent decisions by the U.S. Supreme Court suggest the court’s new conservative majority is willing to engage in judicial activism, thereby undermining respect for the rule of law.

That’s the view of Stefanie Lindquist, a professor of law and politics at Arizona State University and executive director of the Center for Constitutional Design at the school’s College of Law.

Lindquist spoke to about 30 people at Washington State University’s Foley Institute on Tuesday. She was the first speaker in the institute’s fall semester guest lecture series.

Although the nine Supreme Court justices aren’t elected, they’re often called upon to pass judgment on — and potentially invalidate — the actions and decisions of elected officials in the executive and legislative branches of government.

When evaluating how the court exercises that power — that is, how willing it is to tip the balance between judicial activism and judicial restraint — Lindquist said it’s important to consider a number of factors.

“When do they look like they’re stepping over the bounds of their proper judicial role and more into a policy-making, legislative role?” she asked. “There are three obvious examples of when they’re policy-making, as opposed to judging.”

The first is when they overturn past precedent, as they recently did in the Dobbs decision, which upended the 1973 Roe v. Wade ruling that legalized abortion.

“Overturning precedent destabilizes the law,” Lindquist said. “It demonstrates a shift in the justices’ orientation to the law. It looks more like policy-making than when they simply stand by judicial precedent.”

That’s particularly true when precedent is overturned on a split decision, rather than a unanimous ruling, she said, as was the case with Dobbs.

Invalidating legislative actions at the federal or state level is another potential example of judicial activism, Lindquist said. The same is true when the court “second-guesses” government agencies.

“In thinking about activism, we’re looking for these specific institutional behaviors, and we’re looking to see when they’re done in a way that advances a justice’s preexisting attitudes.”

That happened repeatedly during the 2021-22 term, she said. In addition to the Dobbs decision, the court overturned concealed carry restrictions passed by the New York Legislature, weakened the separation of church and state in the Carson v. Makin religious education ruling, overruled the Bremerton School District in a school prayer case and limited the U.S. Environmental Protection Agency’s ability to regulate coal emissions in a West Virgina case.

“All five cases were decided 6-3, all along predictable ideological lines,” Lindquist said. “So we have a court that’s intruding or injecting itself into multiple situations, using all the tools of judicial activism.”

Lindquist also referenced a famous footnote in the 1938 Carolene Products decision, in which Justice Harlan Stone recommended that the court exercise restraint when it comes to business and economic regulations.

Stone said the people who are affected by those regulations typically have sufficient power to influence the legislation.

Where the court needed to step in and be more activist, he said, was in situations where laws and regulations affect and potentially discriminating against “an insulated minority.”

What he meant by that, Lindquist said, was that the court should hold itself to a higher standard when reviewing cases where legislation and regulations affect minority groups who lack the power or ability to influence the legislative process.

The current Supreme Court majority has flipped that on its head, she said. Rather than demonstrate restraint, it’s going out of its way to invalidate legislative actions that affect groups — like gun owners or churches — who have a great deal of political influence.

“I think we’re going to see that in spades with the current Supreme Court,” Lindquist said.

All of which is “very worrying” for the rule of law.

“When people lose confidence in the court, they lose confidence in the rule of law,” she said.

Archived video from Tuesday’s presentation and other Foley Institute talks can be found online at bit.ly/3TS3DIG.

Spence may be contacted at bspence@lmtribune.com or (208) 791-9168.