The Right Should Be Relieved SCOTUS Rejected Judicial Activism In Texas v. Pennsylvania

After Texas v. Pennsylvania, conservatives must rediscover their opposition to judicial overreach. A Warren Court of the right is not the solution we need.

The Warren Court holds a special place of derision within the conservative imagination. The term refers to the 1953-1969 timeframe when Chief Justice Earl Warren held sway over the U.S. Supreme Court. The right has understood this court as inaugurating and modeling the modern iteration of “judicial activism.”

Conservative critics of the Warren Court period hold that, through a series of heavy-handed interventions, it undermined essential elements of American government, including the rule of law, popular sovereignty, and federalism. The right’s evolution toward working-class populism should only increase antipathy toward the Warren Court and its rule by elitist judicial fiat.

This makes the case of Texas v. Pennsylvania all the more strange. Texas’s motion against Pennsylvania, Michigan, Wisconsin, and Georgia sought to enjoin certification of their presidential election results and essentially to require each one’s legislature to choose its slate of electors.

Notably, Texas did not act alone in its petitioning. The litigation became a kind of litmus test within the GOP, with supporting briefs from 17 state attorneys general, 126 members of the U.S. House of Representatives, and the president of the United States.

Yet even Earl Warren himself would have hesitated at so brazen a petition. If the Warren Court engaged in judicial activism, these petitioners asked the current Roberts Court to inaugurate judicial hyper-activism.

Resisting Judicial Hyper-Activism

Texas’s invitation to hyper-activism started with its request that SCOTUS hear the case. Numerous restrictions exist on when, why, and how courts adjudicate litigation. Here, the justices refused to take the case Texas’s “for lack of standing.”