How Supreme Court is 'zig-zagging' to 'reach preferred outcomes'

For many years, the U.S. Supreme Court leaned conservative but handed down many decisions that were applauded by liberals and progressives — from Lawrence v. Texas to Obergefell v. Hodges to Texas v. Johnson. Retired Justice Anthony Kennedy was a right-wing libertarian appointed by President Ronald Reagan, yet he often sided with liberal Justice Ruth Bader Ginsburg over Justices Clarence Thomas and Antonin Scalia when it came to abortion and gay rights. And Justice Sandra Day O'Connor, Reagan's first appointee, was another Supreme Court wild card who sometimes found common ground with the liberal justices.

But in recent years, the High Court — where Republicans now have a 6-3 supermajority — has been a frequent source of frustration to liberals and progressives as well as the libertarian right. And The New Republic's Matt Ford, in a biting article published on March 4, argues that the Court's GOP appointees aren't shy about putting partisan politics over the law.

"In the old days," Ford writes, "it used to require actual work to show that the Supreme Court justices were driven by their personal beliefs instead of straightforwardly applying law, precedent, and procedure. You'd have to connect dots across multiple rulings and explain intricate legal doctrines. Even then, it might be too speculative to be truly persuasive. These days, I could probably convince my two-year-old son of the High Court's shenanigans just based on a single day's rulings."

Ford makes his point by discussing the cases Malliotakis v. Williams and Mirabelli v. Bonta — which, he notes, are unrelated yet underscore the Court's partisan nature.

In Malliotakis, the six GOP appointees voted to save a congressional map favorable to Rep. Nicole Malliotakis (R-New York) — whose district includes areas of Staten Island and Brooklyn.

"The first case, Malliotakis v. Williams, is a challenge to the recently redrawn borders of New York's 11th Congressional District," Ford explains. "The state redrew its boundaries to, among other reasons, make it harder for New York Representative Nicole Malliotakis, a Republican, to win reelection this fall. She is one of many incumbents who will likely lose their seats amid the nation's gerrymandering wars over the last eight months. Malliotakis and a coalition of other litigants filed a lawsuit after the redrawn maps were issued, arguing that the Independent Redistricting Commission had impermissibly relied on race when it redrew her district's boundaries…. The other case, Mirabelli v. Bonta, involves a challenge by the parents of children who identify as transgender to a California law that forbids school officials from discussing a student's gender transition with their parents unless that student consents to it."

Ford continues, "Some of the plaintiffs with religious objections argued that the law infringed upon their First Amendment rights to instill their own religious faith in their child, pointing to last year's ruling in Mahmoud v. Taylor. In that decision, the Court's conservatives expanded the First Amendment to allow parents to opt out of LGBTQ-friendly teaching materials. Unsurprisingly, the conservative justices apparently agreed with that view. The other parental plaintiffs, however, argued that the California law intruded upon their rights as parents, which they said were guaranteed by the Fifth Amendment's Due Process Clause."

Ford emphasizes that the High Court needs "a majority of justices" who are "willing to consistently apply legal principles instead of zig-zagging to reach preferred policy outcomes."

"That majority does not currently exist," Ford laments.

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