A False Pretense of Judicial Modesty

They expanded President Trump’s powers to fire independent regulators, rescind deportation protections, and turn away asylum seekers; weakened state authority to enact gun control; narrowed the ability of religious minorities to vindicate their free-exercise rights; eroded the due-process rights of green-card holders; and handed big wins to multinational oil and tech companies.Yet anyone not paying close attention would likely miss the Court’s radicalism. The justices’ language in most cases obscured their opinions’ effects; the word decadent fits. Using invocations of precedent to disguise rather than illuminate, the conservative justices pretend to preserve what they are overturning.This duality—sweeping remaking of law presented as continuity—has become a hallmark of the Roberts Court. Precedent matters. The idea is so axiomatic to the legal system that stating this risks condescension. But the basics are worth restating: Precedent—and the legal doctrine of following it, what scholars and judges call stare decisis—constrains a given judge’s discretion. It also fosters predictability, fairness, and stability in the legal system, allowing society to order its affairs with some confidence about the law.[Adam Serwer: The Court that will believe anything is ‘race-neutral’]When the Court does overrule precedent, it is a big deal, as in yesterday’s decision in Trump v Slaughter. The opinion officially overturned Humphrey’s Executor, a 90-year-old case. But the separation-of-powers practice formalized in Humphrey’s Executor goes back at least 50 years before the Court decided it. Relying on Humphrey’s allowed Congress to build the modern federal government, insulating agencies from the whiplash of ele