The Fate Of The U.S. If The Left Got Control Of The Supreme Court

Currently at the U.S. Supreme Court, the conservatives hold a 6-3 majority. While there are exceptions, most of the politically sensitive cases break along the 6-3 ideological lines. Recent prominent examples of cases breaking in that way include Trump v. CASA (limiting the ability of district judges to issue nationwide injunctions against executive actions); U.S. v. Skrmetti (upholding Tennessee statute banning transgender surgeries on minors); and Loper Bright v. Raimondo (ending the rule that courts should “defer” to administrative agencies as to interpretation of their regulations). In these and numerous other cases, the three liberal justices (Kagan, Sotomayor, and Jackson) would have reached the opposite result.

But the 6-3 conservative majority is very much a result of happenstance. Donald Trump won the 2016 election by a hair, and then got three Supreme Court appointments in his first term. Had Hillary Clinton won, she would have appointed three liberals. Barack Obama’s appointment of Merrick Garland got sunk by some deft maneuvering by Mitch McConnell. Liberal David Souter, appointed by George H.W. Bush in 1990, retired in 2009 (and has since died), while conservative Clarence Thomas, appointed by the same president in 1991, continues to serve.

With a few different breaks, the Court could easily have a 6-3, or even 7-2, liberal majority. Do you ever wonder what our law might look like if that had occurred?

You don’t have to look far to find out. In Europe and Israel, the political left has found ways to control the judiciary, and in particular the highest courts, no matter which political parties win the elections. And here in the U.S., the barrage of litigation against Trump administration initiatives has given a coterie of Obama- and Biden-appointed district court judges the opportunity to show their view of how the law ought to work.

In Israel and various European countries, left-wing judges have somehow arrogated to themselves powers to overrule most any decision of the political branches that they don’t like. At Gatestone Institute on July 8, Drieu Godefredi has a roundup. Godefredi calls what is going on alternately “judicial imperialism” and “judicial tyranny.” Excerpt:

From Israel to the United States, via Europe, the judicial coup d'état has become permanent. In the West, it is not the executive that threatens the separation of powers. It is faceless judges lacking democratic legitimacy who legislate on the pretext of judging.

Consider the case of Israel. Although Israel has had conservative governments for most of the last several decades (Benjamin Netanyahu has been Prime Minister for almost 18 years out of the 30 years since 1996), the Israeli Supreme Court is firmly in the hands of the left. Rather than being named by the political branches as in the U.S., the Israeli Supreme Court’s members come from a Judicial Selection Committee, the majority of whose members are selected either by the Supreme Court itself or by the Israel Bar Association. Lacking a written Constitution like we have in the U.S., the Israel Supreme Court has decided that it can declare actions of the political branches invalid because they are “unreasonable.” Godefredi:

In the 1980s and 1990s, . . . the Court took on the power to assess the "reasonableness" of government decisions, thus giving itself a political veto over the elected government's choices. . . . There is no decision of the Israeli government and parliament that cannot be overturned by unelected judges.

The court has gone as far as to disallow appointment of cabinet officers on the grounds of “unreasonableness.”

Or consider the case of France. While the Biden administration got tied up in knots trying to prosecute its main political adversary (Trump) on some phony charge or other, the French judiciary has been more efficient. Godefredi:

Leading in all the presidential polls, Marine Le Pen, leader of the National Rally party, has been sentenced to a five-year ban from holding public office with provisional execution. . . .

Le Pen’s alleged wrong was “assigning assistants paid by the European Parliament to French national tasks.”

Here’s another example cited by Godefredi:

In 2024, the Constitutional Council censured [struck down] several provisions of the Immigration Act, adopted under political pressure to tighten the conditions for entry and residence in France.

And in summary:

There is effectively no longer a single "right-wing" measure that can be adopted in any field by Parliament or the government without being struck down by the Constitutional Council or the courts.

Other examples cited by Godefredi include several from the European Court of Human Rights compelling European states to accept immigrants from Africa despite statutes to the contrary.

Well, the Europeans and the Israelis have nothing on some of their American counterparts. Consider the latest from one Judge Indira Talwani of the District of Massachusetts. It seems that one of the many provisions of the One Big Beautiful Bill Act, that became law upon signature of President Trump on July 4, would prohibit the federal government from providing further funding for Planned Parenthood. On July 7, Planned Parenthood was promptly in court seeking an injunction against the end of its funding. Note that this termination of funding was not a result of some unilateral Trump Executive Order, but rather part of a duly enacted statute. Under what possible theory could a court order that Congress could not do that?

Here is a write-up from National Review today. Excerpt:

The case went to Judge Indira Talwani, a Barack Obama appointee. Before even waiting to hear the Justice Department’s defense of a duly enacted federal law, she issued a “temporary restraining order” (TRO) ordering that the federal government, starting immediately and continuing the next two weeks, “shall take all steps necessary to ensure that Medicaid funding continues to be disbursed in the customary manner and timeframes to Planned Parenthood” and affiliates. Planned Parenthood is already asking the court to extend the order further before giving the federal government its day in court. . . . Judge Talwani did not issue a legal opinion explaining why she was overturning an act of Congress. Her order made none of the findings required under the Federal Rules of Civil Procedure for a TRO. Nor is this a proper TRO. As we have previously observed, “a TRO is supposed to restrain one side of a case temporarily, so that nothing changes until the court can issue a final order changing things, which then can be appealed. But [the district judge] tried to force the government to pay money it can’t get back.” By ordering that moneys be irrevocably withdrawn from the Treasury without an act of Congress — indeed, in direct contravention of an act prohibiting them — she is flatly contradicting the Constitution’s allocation of powers.

So we now have District Judges who think that they can order the President to spend taxpayer funds that Congress has specifically directed cannot be spent. I would expect this one to get overturned promptly on appeal. But that’s only because of our current Supreme Court. Is there any doubt that a Supreme Court with a majority of Ketanji Brown Jacksons would uphold Judge Talwani’s order?