Guardians of the New Class

Those of us who believe in the rule of law and limited government are understandably flummoxed by the conclusion of the Supreme Court’s 2014-15 term: in rapid succession, and generally by narrow margins, the Court “fixed” an internal defect in the ObamaCare statute (King v. Burwell); recognized so-called “disparate impact” claims under the Federal Housing Act (Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.); created a constitutional right to same-sex marriage and struck down contrary state laws (Obergefell v. Hodges); and re-wrote the “elections clause” of Article I, section 4 to allow non-legislative redistricting (Arizona State Legislature v. Arizona Independent Redistricting Commission).

Constitutional scholars are still parsing the decisions, and it may take the passage of time to gain a full perspective of their significance.

In the meantime, why are these decisions so disturbing to conservatives (myself included)? The Supreme Court has been engaged in judicial activism for decades; the Warren Court practically specialized in it.  The outcome of Obergefell was widely anticipated, and was foreshadowed by Justice Kennedy’s opinions in Romer v. Evans (1996), Lawrence v. Texas (2003), United States v. Windsor (2013), and the farcical “mystery passage” credited to him in Planned Parenthood v. Casey (1992).   Kennedy was hardly a reliable conservative vote coming into Obergefell.  Chief Justice John Roberts showed his true colors (at least regarding ObamaCare) three years ago with his tortured decision in National Federation of Independent Business v. Sebelius (2012).  The lawless “reasoning” of Obergefell was no worse than that of Roe v. Wade (1973), which is, unfortunately, still the law of the land.

Possibly the pall cast by these decisions owes to their cumulative effect, or frustration over the failure of Republican presidents to do a better job of appointing principled conservative judges to the Court (but recall that Earl Warren, William Brennan, Harry Blackmun, and David Souter were all appointed by Republican presidents also), or a sense of helplessness that a Republican-controlled Congress seems so ineffectual in the face of a liberal bloc of unelected judges. Or all of the above; it is easy to be discouraged when hard fought electoral victories yield scant policy gains.

To me, the most depressing aspect of the recent activist decisions is that the Court has clearly begun to think and act as a political branch of government—not even pretending to follow the law.  In critical cases, the liberal Justices (Ginsberg, Breyer, Kagan, and Sotomayor) vote in rigid lockstep, and the “swing” votes (Kennedy and now—at least on occasion—Roberts) increasingly seem to be under the influence of the Greenhouse Effect (named after the former New York Times Supreme Court correspondent Linda Greenhouse), playing fawningly to the audience of liberal journalists and academics.  The Court has its finger in the air, and the direction of the cultural wind is changing.

Call it the Zeitgeist, but Obergefell was met by a White House bathed in rainbow lighting and ubiquitous rainbow profile pictures on Facebook.  Even though only 3% of the population is gay, a much larger percentage of the public (especially among millennials) and an overwhelming majority of what Irving Kristol termed the “New Class” that dominates the media, Hollywood, higher education, big business, and the legal profession, exhibits the secular, anti-bourgeois mentality that views traditional marriage (among other once-dominant values) as unimportant, old-fashioned, and even outmoded.   In other words, the Court has firmly taken sides in the culture war, because (a) it realizes it can; and (b) it disdains the other side, the social order that Joseph Schumpeter referred to in Capitalism, Socialism and Democracy (1942) as “the bourgeois fortress,” consisting of traditional morality, respect for the family unit, and devotion to the rule of law.

If I am correct in this bleak assessment, activist judges see themselves as the Platonic Guardians of the New Class, and, even worse, the New Class embraces them as such.  I will develop this thought at greater length in subsequent posts.

Mark Pulliam

Mark Pulliam is a contributing editor of Law and Liberty.

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  1. gabe says

    ” The Court has its finger in the air, and the direction of the cultural wind is changing.”

    One could say that the court has its finger in a somewhat lower location otherwise known as “four-corner contact” and the wind carries with it the stench of these actions.

    For all the recent discussion regarding “Supremacy, Departmentalism, etc. etc. etc” on these pages, it should be clear to all that such discussions are quite beside the point. The court IS political, it exalts in its political character and power AND as the NRO piece below suggests has, via Black Robe Kennedy’s enlightened divination of the evolving character of liberty, much, much more mischief in store for we poor out-of-step miscreants.

    All Power to the Court – Oops, they have already arrogated that to themselves.

    Oh well, off to GOLF – although I suppose that the mere word “golf” is offensive to some as it is not fully inclusive.

  2. Charles says

    Regarding Scalia’s dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission:

    Where could I look find the word “standing” in Article III of the U.S.Constitution? I am having a hard time finding that word. I am also having trouble finding the phrase “traditionally exercised by English and American courts” in that Article. But apparently “standing” and traditional practices are both Article III limits on federal jurisdiction …..

    but see

  3. R Richard Schweitzer says

    As has been suggested previously on this site, perhaps we should give closer consideration to the factors that appear to be producing dualities of functions of our legal system and its judiciary.

    The Federal Administrative State [FAS] has become fully formed and conducted for purposes of obtaining social, economic, and ideological objectives by political means. It is separate and distinct from a constitutionally delineated Republic and the provisions for the governmental mechanisms of that Republic.

    The FAS has been established as a result of authority ceded or recognized by reason of general public acceptance of the authority and legitimacy of that enterprise to institute programs for the benefit of segments of society, through Social Security, Medicare and Medicaid, education, housing and healthcare, as well as other benefits or mitigations of burdens for particular interests.

    Because the objectives of the FAS are determined by political means, its establishment has been conducted and expanded by the same electorate (and procedures) that direct the functions of the mechanisms of Constitutional government. Accordingly, the instrumentality of the mechanisms of Constitutional government, including its legal system *and judiciary* are used for the functions and purposes of the FAS.

    The formation and determination of the objectives (and means for their attainment) of the FAS are conducted separately from the strictures of the Constitutional Republic. However, those determinations are made by the same legislative and judicial bodies.

    In reaching determinations on matters arising within the FAS, such as the issues in King vs. Burwell, the functions of the judiciary may be seen to differ from those in determinations on matters arising in the constitutionally delineated functions of the governmental mechanism.

    That mechanism, and its determining legislative and judicial bodies, were not designed for, and because of its coercive powers cannot sustain, its use as an instrumentality for the purposes of the Federal Administrative State. One or the other must ultimately fail.


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