Hypocrisy Is Killing the Supreme Court

By Anastasia Boden

When people criticized one another, only to turn around and do the very thing they were lambasting, we used to call it hypocrisy. Now it seems to be the playbook for anyone disaffected with the Supreme Court: Call the decision an outrage, chalk it up to nefarious motivations—then use that decision for your own ends. Given the Supreme Court’s already-suffering reputation, it’s a dangerous and deeply misguided game.

Take the recent announcement from top officials in blue states that they intend to weaponize a recent Supreme Court decision against the Trump administration. That case, Loper Bright v. Raimundo, said that judges no longer have to defer to bureaucrats’ interpretations of federal statutes when the statutory language is unclear. Its basic holding is that the job of determining what a law means—for example, whether it gives executive officials certain powers or duties—belongs to judges, not the very bureaucrats who will be exercising that power.

Just months ago, critics argued that the decision would kneecap the Biden administration’s ability to protect the public and even suggested the justices were in the pockets of corporations. Yet top attorneys in blue states now say they hope to use the decision to curtail the power of the Trump administration. It turns out that the same people cheering for unfettered deference to executive officials under President Biden are less keen on that deference now that a new president has taken office.

The hypocrisy comes from both sides. Conservatives have long criticized the doctrine of “substantive due process,” a concept that evolved out of a series of Supreme Court decisions holding that the Constitution’s due process clause protects us not only from arbitrary processes but also from arbitrary laws. Ever since the Court used the doctrine to establish a constitutional right to abortion in Roe v. Wade, conservatives have seen the doctrine as granting judges a free-wheeling ability to invent constitutional rights or strike down any law they dislike.

But substantive due process now appears to be gaining favor among conservatives. It has been one of the main theories used to sue schools that facilitate gender transitions without parents’ knowledge or consent. Lawyers whose clients oppose the practice have argued that the school policies violate substantive due process because they arbitrarily restrict the parents’ right to direct their children’s upbringing.

Furthermore, both parties turned their backs on their long-standing positions in Moody v. NetChoice, a 2024 case involving government regulation of social media platforms. Because social media companies were seen as suppressing conservative speech, Florida and Texas passed laws limiting the platforms’ ability to moderate content and forcing them to host users they’d rather remove. Conservative proponents of the laws argued that increased government regulation was justified because it advanced free speech principles for (largely conservative) individuals, while progressive opponents argued against government involvement because the laws infringed on social media platforms’ property and free speech rights.

But just a few years prior, in 2021, conservatives had rallied against a law that forced businesses to host union speech on their property. In Cedar Point v. Hassid, a nursery and a packing company challenged a California law that required them to allow union access on the theory that it violated their property rights, while many noted the law also implicated the plaintiff companies’ speech rights. After the property owners won, progressive critics slammed the decision for “union-busting” and even suggested it could lead to the end of civil rights laws.

The social media case was merely the inverse of Cedar Point; both dealt with the government forcing the plaintiffs to host certain speech, but the former involved speech that conservatives liked while the latter involved speech that progressives favored. As a result, many of the same people who criticized the Supreme Court for protecting property rights against unwanted union access in Cedar Point were happy to cheer the Court on when it sent the NetChoice case back down to the lower courts—a move that will likely wind up protecting social media companies against unwanted conservative access.

Even more concerning, prominent progressives—historically champions of the First Amendment—are calling free speech “dangerous.” And though conservatives have long argued that the president has limited power to appoint people without congressional oversight, some recently demanded that Congress voluntarily adjourn to give Trump exactly that power. Principles are supposed to be enduring—not dependent on who happens to benefit at any one time.

Loper Bright was a correct and good decision because it leveled the playing field for all people who find themselves in disputes with executive officials. Substantive due process is a correct and good doctrine because it protects all liberty from arbitrary government interference. Both NetChoice and Cedar Point were correct and good because they protect all peoples’ property and free speech rights. If we wish to preserve America’s constitutional order, we must return to these principles rather than evaluating cases based on whether we liked or disliked the side that won.

It’s been widely noted that the Court is experiencing a legitimacy crisis. Perhaps rather than resorting to extreme measures such as court packing or a new ethics code for the justices, we’d all do more to bolster the Supreme Court’s credibility by sticking to principles rather than sacrificing them for momentary gains.

Anastasia Boden is a senior attorney at Pacific Legal Foundation, a public interest law firm that defends Americans’ liberty pro bono against government overreach and abuse.