HUGH HEWITT: Supreme Court alarmists are wrong. The republic of laws endures

Teaching Constitutional Law is a pleasure, not a job – except for the 11th Amendment and “Non-Trade Clause” cases and materials. The law school classroom is also a great perspective from which to understand that American constitutional law moves at a very gradual pace, and that this pace is a very good thing for the enduring “rule of law” that Americans enjoy.

Every semester since 1996, my students have heard that Con Law must be the most interesting course in their three-year law school. Of course, every law student is different, and the “Uniform Commercial Code” may float some boats, and “Trusts and Estates” can be quite shocking—people would actually “throw grandma off the train”—but the Con Law affects the lives of every citizen, and so law students should care about it as citizens, if not as lawyers. In fact, only a relatively small percentage of lawyers will encounter issues with the Constitution during their careers. Even fewer will “practice.” Only a handful in this field will handle a case involving the highest law of the land at the lowest level. can argue even before the lower courts, much less before the United States Supreme Court.

Still, there are many reasons why most of the nation’s news media focus on the decisions coming out of One First Street, NE, Washington, DC, every June or at the beginning of July at the latest. As a republic of laws, the nation’s highest court makes decisions that affect every American because we are equal before the law. The most difficult cases it accepts and decides matter to 330 million of us. The news media – both old and “new” – love stories.

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So “SCOTUSblog” has become an extremely useful meeting place for Court watchers of all stripes, especially non-lawyers trying to make sense of the flurry of end-of-term decisions. This goes double for ordinary people trying to figure out whether the Court is leaning far right or far left on many issues, and even some.

“In many ways, this period has been more ideologically divided than any previous period,” Jake Truscott and Adam Feldman wrote for the SCOTUSblog platform on the first of this month. “Last term, 15.2 percent of court decisions were made by a 6-3 vote, and 9 percent of all decisions were due to a 6-3 ideological divide. During this period, these figures increased significantly, to 28.8 percent and 22.7 percent, respectively.”

So the Court has moved slightly “to the right,” but only slightly more than a fifth of all cases resulting in opinions are decided along the lines of the distinction between “originalists” and “living Constitutionalists.” (“Originalists” are Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Of these six, Roberts, Barrett, and Kavanaugh are often grouped as “moderates.” The “liberal” justices are Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson.)

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The Court issued 67 majority opinions this term, but actually issued hundreds of smaller decisions throughout the Court’s year, which begins in October and (usually) ends at the end of June.

“Justice-level data reinforce this picture that the court is still organized around a conservative center but does not operate with a purely ideological model in every major case,” Truscott and Feldman wrote. “Roberts and Kavanaugh were each in the majority at 95% this term. Barrett followed with 92%.”

“[Justice] “Jackson maintained the least justice in the majority,” they continued. “This term he was 67 percent in the majority overall and 41 percent in non-unanimous cases.”

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Thus, the justice considered the most ideological and most left-wing was still in the majority in two of the three major cases. This should reassure non-lawyers that a robed revolution is out of the question. With large numbers of district court judges regularly appearing out of the blue, there is a growing perception that the judiciary is politicized and highly ideological. This is true for some lower courts. But our highest court is a tremendous force for stability in the country, which has just turned 250 years old.

Con Law students note that the Court generally moves slowly, and when it doesn’t — the radical 1973 decision in Roe v., which declared all anti-abortion laws in the nation unconstitutional. They are learning that – as with the Wade decision – they cannot expect the country as a whole to shrug its shoulders and follow this law. The court may sometimes be a little ahead of public opinion, but it can rarely change the course of politics. When it tries to do this, it widens and/or worsens deep divisions among citizens rather than closing them.

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This year’s most controversial decisions are actually not as divisive as Roe or the “Obamacare” decision (2012’s National Federation of Independent Business v. Sebelius) or the Bush v. Gore decision, which effectively decided the election by ending the (seemingly) endless recount — as post-election “audit” after post-election “audit” has shown, by the way. The most significant of these cases may be National Republican Senatorial Committee v. Federal Election Commission, which ruled that provisions of the Federal Election Campaign Act restricting the amount of money a party can spend in direct coordination with a candidate’s campaign were unconstitutional, thus providing a much-needed boost to two major political parties in need of abolition.

The “birthright citizenship” case (Trump-Barbara) attracted great attention but little real surprise to the general public. Find me someone outside academia and a few think tanks who know that there was a question about the citizenship of any baby born in America before the abandonment of border control in the Biden years; I would be surprised if this person knew the text, history, and tradition underlying the arguments. As with most “big cases,” the “importance” of the case will fade away even as policy debate continues on the central issue of rational immigration policy.

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This in itself is a victory for the rule of law. Americans generally accept the Court’s decisions and move on. Contrary to the overheated and essentially ridiculous “Trump is a fascist” narrative, President Trump has always complied with every court order, even ones he deeply and vociferously opposes. This is the authority of the Supreme Court. The court has the final say on “cases and disputes” that divide the country. It’s been that way since the Civil War, and if it stays that way we’ll all be happy.

So banish the alarmists. Ignore the doomsayers. The Supreme Court has continued its work successfully – again – and will resume in October (or earlier if necessary). The “republic of laws, not of men” continues. Con Law is still the most interesting course in law school, but textbooks change little from year to year. And that’s a very, very good thing.

Hugh Hewitt, Fox News contributor and “The Hugh Hewitt Show” weekday afternoons from 3 to 6 p.m. ET on the Salem Radio Network and simulcast on the Salem News Channel. Hugh takes Americans home to the East Coast and to lunch on the West Coast on more than 400 affiliates nationwide and on all streaming platforms where SNC can be seen. He is a frequent guest of Fox News Channel’s news roundtable hosted by Bret Baier on weekdays at 6 p.m. ET A son of Ohio and a graduate of Harvard College and University of Michigan Law School, Hewitt has been Professor of Law at Chapman University’s Fowler School of Law since 1996, where he started his eponymous radio show in Los Angeles in 1990. Hewitt has appeared frequently on all major national news television networks, hosted television programs for PBS and MSNBC, written for all major American newspapers, and authored a dozen books. He has moderated multiple Republican candidate debates, most recently the 2023 Republican presidential debate in Miami and four Republican presidential debates in 2015-16. Hewitt focuses his radio show and column on the Constitution, national security, American politics and the Cleveland Browns and Guardians Today Hewitt has interviewed tens of thousands of guests, from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush.

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