Supreme Court: It Could Have Been Worse

From The New York Review of Books


At the beginning of this year’s Supreme Court term, I wrote that the coming term offered an opportunity to see whether the Roberts Court was conservative with a small “c” or a capital “C.” Would the Court pursue a minimalist conservative approach that sought to preserve precedent, or would it accept the invitations of litigants in numerous high-profile cases to overturn past precedents that are anathema to many radical conservatives? With the term concluded today, the results are now in—at least for this term. In each of the cases I highlighted where litigants asked the Court to pursue the more radical course of reversing prior precedents, the Court declined, and instead resolved the cases more narrowly. In some cases, the Court may have planted the seeds for future reversals of disfavored doctrine, but for now, the Court’s approach is incremental rather than radical. Conservative, to be sure—but with a small “c.”

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