The Supreme Court Sold Its Soul to the Christian Right

Jay Michaelson
·6 min read
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It’s payback time.

For two decades, social conservatives, Christian Nationalists, and the Religious Right held their noses and voted for Republicans, no matter what. They often disagreed with both the party as a whole and with candidates individually (the Mormon Mitt Romney, for example)  And they often didn’t get what they wanted, from prayer in schools to the abolition of the death penalty.

But the Christian Right knew one thing. While many on the Left said that there’s no difference between the two major parties, the Right knew that whoever controls the White House and the Senate eventually controls the courts. And in a changing America, that is where progress could be rolled back.

Now, those decades of patience are paying off. Last year, of course, the Supreme Court overturned Roe v. Wade, returning the control of women’s bodies to overwhelmingly male state legislatures in the name of protecting the “lives” of fetuses — a theological claim now writ into the laws of a dozen states.

But this year, the Court’s 6-3 supermajority continued to deliver. It ended affirmative action in university admissions, which the GOP has wanted to do for fifty years. It invented a new rule, the “major questions” doctrine, out of whole cloth, and used it this week to invalidate President Biden’s student loan forgiveness program – another decades-long dream of “Big Government Is The Problem” conservatives. And it chipped away at LGBTQ equality, ruling that businesses could refuse to offer services to gay people if those services could be considered “speech.”

This is what caring, or not caring, about elections looks like. Social conservatives were willing to put up with just about anything in order to get what they wanted, while progressives canceled electable candidates and refused to sully themselves for voting for imperfect ones. The Right won, and the Left lost.

This is not to let the Democratic Party off the hook.  Had it stuck to its guns on issues important to its base – fighting corporate power, for example, instead of kowtowing to Wall Street, Big Tech, and Big Pharma – maybe the base wouldn’t have stayed home so often. Had it put forward younger, more dynamic, and less-white leaders, maybe progressives would feel energized rather than uninspired.

And, to be sure, the deck is indeed stacked. Since 1992, Democrats have won the popular vote in all but one presidential election, yet the Electoral College (and Senate) disproportionately favor less populous, rural states which tend to tilt Republican.

But overall, the Right had the wider, longer vision. And now victory is theirs, rewarding decades of patience and compromise with a series of windfalls.

Moreover, the Supreme Court’s conservatives no longer give a fuck, to use the legal terminology. Justices Samuel Alito and Clarence Thomas, its two most extreme members, have engaged in clearly problematic, if not outright corrupt, behavior, accepting large gifts (and yacht trips and fishing trips – what is it about conservatives and boats?) from parties with interests before the Court, and, in Thomas’s case, creating at least the appearance of bias by refusing to recuse himself in cases regarding the January 6, 2021, insurrection, to which his wife has deep ties.

Their responses? From Alito, cries of victimization, and from Justice Thomas, simply ignoring the issue. Because these justices know that they have life tenure, that they’re not going to be impeached, and that there are no binding ethical rules governing their actions.  They just. don’t. care.

The response from the Democrats has been pathetic.

On MSNBC this week, President Biden said that the Court does not represent America, that its rulings are out of step with our country’s deepest-held values.

So what is he going to do about it? Nothing.

Of course, with divided government, there’s not much that can be done. But he could at least propose mandatory ethics rules for Supreme Court justices. He could propose term limits, which unlike ‘stacking the court’ are more neutral in application but which would lower the stakes of Supreme Court appointments. And most importantly, when his own commission studied the crisis at the Court, he could have done something, instead of nothing, which is what his administration did.

Now, to be sure, the Court has not fulfilled every conservative dream. It struck down the “independent state legislature” theory, which would have given state legislatures unchecked control to govern and even set aside presidential elections. And it struck down a North Carolina voting map that was heavily gerrymandered toward Republicans.

But as I argued when the case was decided, the “independent state legislature” wasn’t a conservative idea – it was a radical MAGA one. Numerous actual conservatives lined up against it, recognizing it as anti-democratic and not grounded in the text of the constitution.

And arguably, Chief Justice Roberts’s opinion invalidating that North Carolina map had the effect of justifying his radical pruning of the Voting Rights Act. Like the tree in the children’s book The Giving Tree, he’s chopped down its branches and sawed off its trunk – but look, you can still sit here on the tree stump!

Most importantly, while it’s easy to get lost in the political and legal issues, these and many other court decisions affect real people.

For example, if recent history is any guide, there will be fewer Black students in elite universities eighteen months from now, because, on average, schools with high Black populations are underfunded, Black students are more likely to grow up in areas with high levels of crime and instability, and a thousand other factors (health, nutrition, income, job opportunities) contribute to a situation in which the playing field for seventeen-year-old college applicants simply is not equal.

This doesn’t mean, as Justice Thomas said in his preposterous caricature of Justice Ketanji Brown Jackson’s dissent, that Black people are victims or that other people don’t also experience oppression. I just think of my own child and the children of my similarly-privileged kids, with their SAT tutoring and safe, suburban schools, and it’s ludicrous to imagine that the compelling state interest of equal opportunity will be met just by letting the chips fall where they may. This is America.

And that is one example. Arguably, the conservative-supermajority Supreme Court’s greatest hits are still to come. Armed with the “major questions” doctrine, it may well strike down a bevy of environmental, health, and public safety laws. God knows what it will do on the Second Amendment.  And, lest anyone think that overturning Roe v. Wade was its final statement on women’s rights, conservative organizations are preparing challenges to the constitutional rights to contraception and even no-fault divorce.

Because if there’s one thing that America needs, it’s more women trapped in abusive marriages and forced to have more babies. I guess that’s two things.

Of course, it’s quite justifiable to be angry at religious and social conservatives, especially if you’re queer, non-white, or female, or if you care about someone who is. But you gotta hand it to these theocrats: they outplayed us. They compromised, took the long view, turned out their base time and time again, and swung the Senate and thus the courts.  Now it’s our turn.

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