There is, however, a danger in always standing apart from others. It can easily lead to standing above them. As Garrett Epps, the Washington Monthly’s legal editor, wrote in fall 2022, the Court is now mired in its third great historical crisis. Twice before, in the 1850s and the 1930s, the high court has been captured by adherents of one political party who have attempted to govern from the bench. When one branch of government declares its own primacy over the others, as well as the American people, the result is dangerous instability. In the era of Dred Scott, the Taney Court sided firmly with southern slaveholders, accelerating the coming civil war. During the Great Depression, the “Four Horsemen” on the Hughes Court blocked government programs meant to lift the country out of economic disaster.
Now we have the Roberts Court, shaped by pro-corporate ideology and conservative resentment over social and demographic change. Overturning decades of precedent, the conservative supermajority has issued ruling after ruling that undermines the ability of executive branch agencies to regulate industry, to fight climate change, and to protect consumer health and safety. Its 2022 Dobbs decision on abortion has created a dystopian reality on the ground: neighbors informing on neighbors, children forced to give birth to their rapists’ babies, terrified doctors waiting for patients to get sicker before performing medically necessary procedures.
