Constitutional Law

Whatever The Constitution Allows

For almost 50 years, the conservative legal movement has maintained a working majority over the federal judiciary, but has individual liberty strengthened over this time period?

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Since the liberal Warren Court gave way to the conservative Burger Court well over four decades ago, conservatives have maintained a working majority over the federal judiciary. More recently, this conservative movement has come to achieve sheer dominance over the judicial branch. Having maintained so much power for almost five decades likely means there are discernable long-term conservative legal trends we can examine over this time. Moreover, these trends could indicate what a super majority conservative control is now going to do. Therefore, some might hope that because there has been an undeniable expansion of free speech and Second Amendment protection in the last 50 years, our future with a super conservative control is bright. Unfortunately, trends reveal that free speech expansion is under serious threat from a growing conservative movement that includes member(s) on the Supreme Court and the current president, who have plainly expressed their desire to see this expansion reversed. Furthermore, while undeniable expansions of individual liberty have indeed taken place over the last 50 years, with very few exceptions what has dominated conservative time in power is a steady restriction of individual liberty.

One of the most egregious, and deadly, examples of destructive conservative influence in the last five decades is upon the rights guaranteed by the Fourth Amendment – although much has been made of a relatively recent line of cases where conservative majorities have disagreed with the government over what is an acceptable warrantless search. As I have said before, these line of cases do nothing to address the much larger and deadlier problem of the absurdly abused standard by which violent warrants are regularly signed off on.

Making things oppressively worse, conservative influence has been the driving force behind the almost five-decades-long trend of restricting a straightforward law that permits citizens to hold bad government actors accountable when they violate their constitutional guarantees. In fact, I have personally seen this trend in action. Indeed, a citizen’s right to hold bad government actors responsible for unlawfully and violently breaking into their homes has been effectively abolished — abolished through a court-concocted immunity that has no basis in textualist or originalist understanding.

Currently, during an election conservatives are conceding they are likely to lose, the conservative political movement has replaced one of the few justices who was openly skeptical of this court fabricated immunity. Of course, even prior to Barrett’s ascension, the Supreme Court already had a working conservative majority that has furthered the trend of concocting atextual, ahistorical preconditions or defenses to a straightforward statute which plainly states that every state official who violates a citizen’s rights “shall be liable to the party injured.” All throughout Barrett’s hearing though, I had to keep hearing the claim that originalist conservatives simply follow the law. They simply don’t, and the long-term conservative trend of utter destruction to our individual liberties via made-up immunities says so.

Another conservative trend that can be discerned within the last 50 years is within the religious liberty landscape. Indeed it seems plain to say that religious liberty cases over the last four decades have trended towards expanding the religious right to dissent, not just through a First Amendment lens but also through a “super statute.” Meanwhile, however, the nonbeliever right to dissent over this same time period has been tightly restricted and openly disdained. For example, the “super statute” that grants conservative religious views broad exemption from all other laws has been denied to the deeply held beliefs of nonbelievers. Denying nonbelievers the same rights under this “super statute” has the effect of creating government castes that favor religious citizens in the law to the exclusion of nonbelievers.

The fast growing nonbeliever population is not only harmed by conservative favoritism granted to religion and by their exclusion from this government favor, but any law that seemingly could protect the right of the nonbeliever to dissent or be exempt from laws is also being struck down by conservative majorities. The result is a “free conscience” doctrine where only certain types of conservative religious and political views are being protected against government compulsion. All while conservatives endlessly repeat the bigoted and demonstrably untrue drivel that this country is intended and suitable only for them.

Similar to other libertarian-minded folks, I am unabashedly opposed to any movement, right or left, that produces these types of enemies to freedom. Being forced to financially subsidize religious beliefs I disagree with is not acceptable. It is also not acceptable that demonstrating racial discrimination is virtually impossible in our current court system whereas proving religious discrimination does not require proof of discriminatory treatment or intent. I submit that a judiciary unilaterally crafting defenses and preconditions to laws because they don’t like the policy choice of subjecting cops to liability goes against everything an independent judiciary stands for. So, whatever the constitution allows — up to and including adding members to SCOTUS — to stop this assault on individual liberty, I fully support.

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Tyler Broker is a practicing attorney whose work has been published in the Gonzaga Law Review, the Albany Law Review, and the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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