A strange and counterintuitive thing is happening at the Supreme Court. At a time when SCOTUS nominating battles have polarized our nation like never before, the Court itself has defied dark partisan fears and high partisan hopes time and time again. The expected sharp ideological divisions have failed to materialize, and the Court has navigated its way through hot-button case after hot-button case through a series of supermajority decisions that have created confounding and unexpected judicial alignments.
The Court’s rulings have had profound cultural and legal consequences. In a time of deep polarization, the Court remains largely trusted by partisans on both sides—60 percent of Republicans and 67 percent of Democrats trust SCOTUS. But there’s also a legal consequence: At a time when the nation’s classical liberal order is under assault from both ends of the political spectrum, the collective effect of the court’s opinions has been to maintain a kind of “rule of reason” jurisprudence that 1) defends (and defers to) democratic processes; 2) broadly protects the Bill of Rights; and 3) disfavors discrimination and arbitrary exercises of power.
At times, given rulings have frustrated conservatives, progressives, and libertarians in turn. There are times when I’ve wanted the court to go farther than it has. (Overrule Employment Division v. Smith already!) But the three legal trends above are both unmistakable and—taken together—a (mostly) welcome and necessary defense of our nation’s classical liberal constitutional order. Let’s take each in order.
First, the defense of American democracy has most recently played out in cases that triggered Democrats’ worst fears—election challenges and Obamacare. Despite over-hyped progressive concerns (and Trump’s hopes!) that “his” judges would end Obamacare and hear Trump’s legally frivolous electoral challenges, SCOTUS supermajorities both refused to hear electoral challenges and (once again) upheld Obamacare.