Is the Supreme Court a MAGA court?

Senate Majority Leader Chuck Schumer, D-N.Y., has taken to referring to the Supreme Court as the “MAGA court.” Other Democrats are picking up on the rhetoric, which is a fairly transparent attempt to delegitimize the court for the sake of a political narrative at a minimum and perhaps more ambitiously for a potential court-packing attempt in the future. If the left can convince the public that the Supreme Court has lost its independence and has become a mere organ of former President Donald Trump, then there is potentially great electoral benefit as well as future capture of the institution on the line.

But is the characterization fair? Who are the six justices being lumped into the MAGA group derided by Sen. Schumer and others? Justice Clarence Thomas was appointed by George H.W. Bush and had his nomination shepherded by Sen. John Danforth, R-Mo. It would be hard to imagine a Republican more different from Trump than the patrician Bush the elder. Bush’s other choice was famously Justice David Souter, who regularly voted with the left. Chief Justice John Roberts and Justice Samuel Alito assumed positions on the bench under President George W. Bush, who is also a substantially different kind of political figure than Trump. The younger Bush was as internationally oriented as his father and pushed “compassionate conservatism” rather than Trump’s more hard-edged economic nationalism and border control.

Trump had the highly unusual opportunity to appoint three justices in his term of office. The fact is surely galling to the left and would be to those on the right if the shoe was on the other foot. But are the justices he appointed MAGA justices? Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett do not have anything like a pedigree that suggests some kind of ideological soul connection to Donald Trump. There is nothing in their judicial histories that justifies the kind of attacks made against them by opportunistic entrepreneurs of political narratives.

The simple truth is that there is an actual connection among the six justices referred to now as members of the “MAGA court,” but it has little to do with Donald Trump. It is the Federalist Society. For decades, the long-standing legal affairs organization has sponsored lectures in America’s law schools and vetted candidates for judicial appointments. What’s its agenda? It has been easily understandable by anyone who chooses to read or inquire.

The Federalist Society seeks to influence judges and lawyers in such a way as to protect the U.S. Constitution from aggressive reinterpretation that essentially erases the original understanding of the document. In particular, the goal is to protect our understanding of the Constitution as one that ensures limited government through preservation of the separation of powers, checks and balances, and federalism. The result should be to protect the right of the American people to govern themselves, not to be overawed by the power of the central government, and to have a representative government rather than one led by unelected bureaucrats.

In building the narrative of the MAGA court, Democrats have largely pointed to three decisions: the Dobbs decision that reversed Roe v. Wade, the Raimondo decision that diminished the power of administrative agencies to shape law, and the Trump decision that ordered a more careful consideration of where the former president could claim the protection of immunity for his official acts.

Concerning Dobbs, it is an easy thing to take a politically charged case and try to describe it as something illegitimate, but the reality is that it has long been well-known that the Roe decision was on shaky legal footing. When a supposed right to abortion was reaffirmed in the 1992 Casey decision, it was largely justified on the basis that women had relied on it rather than on a constitutional foundation. Dobbs returned the issue to democratic consideration where the left, despite its complaints, has largely had the advantage.

In any case, Donald Trump is not exactly a pro-life warrior. The Raimondo decision, like Dobbs, bolsters democracy and self-government rather than diminishing them. And the Trump decision, though it favors the president, can easily be seen as an attempt to prevent political parties from constantly engaging in lawfare against each other after changes of power.

The simple truth of the matter is that this Supreme Court has consistently ruled in highly justifiable ways. It is completely improper to treat its members (or six of them) as mere extensions of Donald Trump when it is easy to make a case otherwise, as I have done above. By doing so, the American left seeks a political advantage, but it does so by undermining respect for the court as a stabilizing influence.