My guess is that the Roberts Court will go down in history as the worst since the 1850s. From the creation of important new legal standards untethered to any provisions in the Constitution (“major questions”) to deliberate misstatements about the record (free exercise cases) to grubby political compromises (Obamacare) to the unscrupulous cherry-picking of history (gun cases; abortion) to an opinion based on hypothetical future facts that bear no resemblance to the actual record (presidential immunity) to rulings favoring parties who clearly lacked standing (most notably, student debt relief), this Court has done it all.
But which decisions were the worst? Here are my choices:
- THE PRESIDENTIAL IMMUNITY CASE: The Court ignores the actual facts of the case, the text of the Constitution, and the legislative history–that is, everything that would normally drive a decision–and crafts dangerous new standards to protect Donald Trump based completely on its own views of what the Constitution should say.
- THE NATIONWIDE INJUNCTIONS CASE: The evil twin of #1. The Court makes a sweeping new rule that will result in grave injustice and administrative chaos based solely on its distorted views of equity and history.
- THE GUN CASES: No reputable historian with whom I am familiar believes the Court accurately interpreted the historical record. Now we are left with a line of reasoning that requires judges to determine whether AR-15s are the modern equivalent of muskets.
Roger Taney would be proud.