Rainy days and Mondays
By 
It’s both in Boulder, so let’s start the morning with some fun facts.
As of this coming May, it will have been exactly 50 years since the majority of the Supreme Court’s current members were nominated Democratic president. During this period, the Senate will have been controlled by the Democrats 60% of the time. The Democratic presidential candidate will have gotten more votes than the Republican in seven of the twelve presidential elections held over that half century, but because of a combination of the Wisdom of the Framers, a judicial coup, and treason, a Democrat will have been president for only two-fifths of the time.
Marty Lederman:
Because of our increasing partisan polarization and the corresponding battle lines that have been drawn in terms of jurisprudence, the solid conservative majority on the new Court will—perhaps for decades to come—be much more homogenous on the vast majority of closely contested and important questions than the pre-Roberts Court ever was. (After all, Justices Brennan and Souter were more liberal than the Presidents who appointed them, and Justices O’Connor and Kennedy occasionally voted with the “left” wing of the Court on a handful of high-profile issues, including abortion and gay rights.)
Of course the future is unwritten, and no one can say for certain. Even so, it’s fairly safe to assume that the new Court will be far more aggressively conservative than any in (at least) the past 80 years.
The new majority will likely take significant steps, for instance, to sanction further Republican-enacted limits on the franchise; to bless efforts that skew the electoral system strongly in favor of Republican majorities; and to invalidate laws of other kinds (campaign finance regulations; agency fees; affirmative action initiatives; etc.) that tend, on the whole, to strengthen Democratic constituencies. In other words, we should expect to see plenty more decisions to add to an already imposing list that includes, e.g., Bush v. Gore; Crawford/Husted; Gill/Benisek, et al.; Citizens United/WRtL (and other campaign finance cases); Shelby County; Parents Involved; Janus; Epic/Concepcion, et al.; etc.
And then there are the many cases the Court majority will likely decide, invoking several different constitutional provisions and doctrines–the Free Speech Clause (especially); perhaps the Property and Contract Clauses; extra-textual federalism limits; limiting constructions of Congress’s post-Civil War enforcement powers; perhaps the Free Exercise Clause (and certainly RFRA); etc.—to narrow the scope of constitutionally permissible initiatives if and when the Democrats ever do again obtain majorities in the political branches.
The new five-Justice majority is also likely to dramatically enhance executive authority, in both foreign and domestic affairs, including by, inter alia, endorsing “unitary executive” theories (rejected by all but one of the Justices on even the Rehnquist Court) and statutory interpretations (see, e.g., the SG’s aggressive brief in Lucia)that will constrict agency independence; perhaps re-asserting a more robust nondelegation doctrine; discounting the role of international law in construing the President’s war powers (see Justice Kavanaugh’s remarkable opinion in al Bihani, discussed here); applying extraordinary deference to the President in areas of foreign affairs, national security and immigration, even in cases (e.g., Trump v. Hawaii) where the presidential rationales are transparently pretextual.
In all of these ways, the Court will (probably) strengthen the ability of the Republican Party to entrench electoral power, and place obstacles in the way of future Democratic Presidents and legislatures to accomplish their desired substantive ends, despite the fact that the nation’s demographics and its electorate appear to be heading inexorably in the opposite direction.
As Lederman points out, we’ve gotten here because of the unrepresentative nature of the Senate and therefore of the Electoral College, gerrymandering by state legislatures, the Leninist nature of the contemporary Republican party — he of course puts it much more politely than that, which I would suggest is in its own small way part of the problem — and some bad luck.
He also mentions Putin, but being a polite liberal, he simply cannot bring himself to state what is now obvious, which is that the Republican party has been taken over completely by Donald Trump, which means that it is now an active instrument of treason in the defense of white supremacy, which means that the same thing is now true of the Supreme Court.
Here is another thing he cannot bear to look in the face:
An aside, to anticipate the inevitable pushback: No, I am not asserting that these five Justices will, more than others, decide cases on purely “partisan” grounds (e.g., by asking themselves “Will it Benefit the GOP?”). That overly simplistic account is (mostly) not the way these things work. Indeed, I agree with Justice Kagan that the Justices’ votes are not “simply an extension of the terribly polarized political process.” I assume they sincerely believe that their decisions do, in an important sense, reflect the better view of the law as they see it, at least in most cases (but perhaps not all—see, e.g., Janus).
What is maddening here is the failure to recognize that there is no contradiction of any kind between a person sincerely believing he is doing one thing, while in fact he is actually doing something else.
We now have a majority of Supreme Court justices who are going to decide any really important case in exactly the same way they would decide it if they received their marching orders directly from the leadership of the Republican party. Who cares if they’re sincere in their belief that it’s just pure coincidence that “what the law requires” turns out to be identical to what the Republican party wants, at least in any important case? (Part of the self-deluding structure of this state of mind is that no doubt John Roberts and the White Man’s Burden will occasionally deviate from the Republican line in a few cases that don’t matter much, because such occasional deviations are key to maintaining a patina of legitimacy, both in the eyes of the largely clueless public, and in the twisted little minds of “sincere” judges).