Are the conservative Justices playing politics?

Probably, and that’s bad for straightforwardly political reasons.  Arrogant, naively moralistic Justices would be much less effective.

Last week the conservative court preserved access to the critical abortion drug mifepristone.  But they relied on a procedural technicality and thus preserved their ability to limit use of the drug after the upcoming election.  Refusing to reach the merits may well have been a savvy political move to limit the risk of a backlash against Republicans in November.  Lithwick and Stern have the gory legal details.

At the same time, the court struck down the ATF rule limiting access to bump stocks.  This decision gave a victory to an intensely motivated pro-gun faction in the Republican coalition on an issue that is probably not important enough to most voters to hurt the GOP.  The decision also strongly suggests the court’s war against the administrative state will continue, and that the court will pursue it to the point that it makes effective regulation very difficult.  (This point deserves its own post.) 

I suspect this pattern will continue as the current Supreme Court term wraps up.  Preserving access to mifepristone may give the conservatives political cover to rule against women who need emergency access to abortion in the pending EMTALA decision.  More generally, the most conservative Justices may be reluctantly wrapping their heads around the fact that the best way to achieve conservative results on high profile issues is to quietly take electoral politics into account by gaming the timing of elections and using salami tactics to avoid triggering a backlash.  Roberts was strategically correct to worry in Dobbs and the Affordable Care Act case (NFIB v. Sebelius) about preserving the Court’s legitimacy and preventing a backlash against it. 

If the more arrogant and self-righteous conservatives learn this lesson it will be bad news for the rest of us.  Republicans would likely have done substantially better in the 2022 mid-terms were it not for the Court’s heavy-handed ruling in Dobbs.  The Court could probably have reached the same result in a more incremental way that would have avoided the backlash.  A more politically strategic (euphemistically:  “institutionalist”) Supreme Court could easily be the difference between abortion access and restriction, and between a world in which our liberal democracy manages to stay in front of the breaking ice and one in which it falls through the cracks. 

The key takeaway on mifepristone is that the Justices refused to reach the merits of the case until after the election, when they will be able to ignore the public and do what they want with impunity.  No one should be in doubt about what will happen if Trump is re-elected.