Culture Wars/Current Controversies

America’s long record of judicial despotism

The Supreme Court last week struck down President Biden’s coronavirus vaccine (or testing) mandate for businesses with more than 100 employees. As Mark Joseph Stern writes at Slate, the reasoning was ridiculous and tendentious. “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind,” the majority wrote, conveniently ignoring that this is the first such pandemic in that half century. This absurdity was only underlined by the fact that the arguments in the case were heard remotely — because of the ongoing pandemic — and that one of the plaintiffs’ lawyers was himself positive for COVID-19.

The ruling is one more piece of evidence for a larger truth: America has a de facto judicial tyranny, and it’s unlikely to change.

If the current conservative justices retire strategically, as they generally have done, Democrats would have to control the presidency for something like 20 consecutive years — while holding the Senate when there are seats to be filled — to have a fair shot at taking back the court majority. Realistically, absent adding more justices to the court or other extreme measures, we’ll not see a liberal majority again in our lifetimes, and Democratic presidents will find their every move stymied by the conservative bloc.

Yet this isn’t the first time of judicial despotism in American history. The Supreme Court has often acted exactly as it is doing today, and that history is worth reviewing now.

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