The United States Supreme Court, under the Constitution, is intended to be one of three coequal branches of government. Most recently, however, it has played an outsized role. Republican Senator Mitch McConnell from Kentucky has been the chief architect in pushing the federal judiciary in a more conservative direction and nowhere more so than on the United States Supreme Court. This chapter presents a view of how the Supreme Court is intended to operate and argues that today’s Court is exceedingly political. McConnell engineered the placement of three very conservative justices on the Court giving the Court its current 6-3 conservative majority. By reviewing key cases and arguing that the current Court is rejecting much of Supreme Court and constitutional law history, we demonstrate the Court’s rightward shift. As an ideal, we like the Court to be as politically neutral as possible, and we would like it to find and not make the law. However, as we discuss, given the role the Court plays in constitutional interpretation, it is inevitable that it will make the law and that politics will influence its decision-making. This chapter also argues that today’s Court may be the most politicized Court in our lifetimes, if not in our history.

The 1950s is known as a time of great prosperity as the gap between the richest and the poorest narrowed to its lowest point in history and as social mobility was at its highest. It was also a time in which an extraordinary array of commercial products entered our economy as the result of federal research and development programs. After America’s development of the atomic bomb, the Manhattan Project supported the transformation of the technology into more productive commercial uses. This role was repeated in the 1950s when the space race contributed to the federal development of the internet, together with a vast array of technologies such as cell phones and GPS services that we use today. However, there was a dark side to the 1950s. Racism was rampant and anxiety about nuclear disaster increased. In response to that anxiety, there were two movements in the United States. On the left there were movements for student democracy, civil rights, women’s rights, and the like. On the right, a new style of economics was emerging with great allegiance to markets and a commitment to reduce the size of government. Once again, we see the tension between markets and government which remains with us.

The anxieties of the 1950s intensified as the Cold War heated up. JFK ’s election promised a New Frontier, and then his assassination extinguished that flame. On the one hand, the civil rights, Chicano (El Movimiento), women’s, student democracy, labor union, environmental, and public interest movements of the 1960s promoted a robust government response in which Congress passed hundreds of new laws to address the concerns raised by the movements. LBJ’s Great Society also included an array of social program that addressed the extraordinary level of poverty in the country. On the other hand, the Vietnam War significantly dampened the hopes for a Great Society as tensions arose between those for and against our continued presence in Vietnam, weakened trust in government. The political movements added to this lack of trust when they supported legal procedures to make sure that government did its job. As faith in government receded, and the reaction to the extraordinary expansion of government intensified, the table was set for a new allegiance to a market economy.

After the Civil War, the Industrial Revolution was also in full swing as a new form of capitalism took hold and the American economy leaped forward. The country also experienced sudden urbanization as immigrants from Europe and Americans flocked to the cities from the farms in search of better employment. At the same time, large corporations, with sophisticated Wall Street financing, were able to amass great wealth, often by using anti-completive means to eliminate competitors. Finance capitalism also brought a rash of social ills including slums, dangerous foods and drugs, dangerous workplaces, and increasing poverty as workers were forced to yield to the low wages offered by corporate employers. In response to the concentrated power held by private corporations, Progressive reforms urged countervailing power that was needed in the form of the federal government. Federal legislation was passed to control monopolies, monitor unfair railroad rates, and regulate tainted foods and meats among other forms of new regulation, as the federal government took on a new role of policing markets in addition to supporting economic prosperity.

The efforts of academics, conservative think tanks, and political leaders on emphasizing markets and reducing government paid off after the election of President Ronald Reagan, which resulted in a new mix of government and markets, although not to the extent that many proponents of small government favored. There have been additional legal procedures and political oversight, which has made it more difficult to regulate some markets; government services have been outsourced, and government spending on regulation and social welfare has been reduced. Bill Clinton, influenced by the anti-government mood in the county, supported deregulation of telecommunications, welfare, and banking, but Congress reversed the banking deregulation after a Wall Street collapse in 2008 and was forced to spend billions of dollars to save the economy. Despite the anti-government mood, nearly all the laws and programs established in the New Deal and Great Society eras have remained on the books and have not been repealed. Besides the bailout, there were some other significant expansions of government including most notably the Affordable Care Act, popularly known as Obama Care.

Joe Biden’s first two years became a turning point. The country had reached a point where it was obvious that the mix of government and markets had titled too much in the direction of markets. Besides the COVID pandemic, Biden confronted growing inflation, an economic recession, and Trump’s refusal to do anything to address climate change, together with a deeply divided partisan Congress. Biden galvanized the Democrats to unite around significant and bold responses and even obtained bipartisan support for some of his legislative agenda. He passed legislation to address COVID and increase government investment in infrastructure and technological developments. Regarding these successes and the inability to do more, Biden focused on how the balance between government and markets depends on the role of government right-sizing that balance by trying to restore confidence in American government and American democracy.

Bashing bureaucrats is an old American political tradition, and no one took this further than Donald Trump, who actively sought to fire civil servants and find other ways to subvert the bureaucracy. Over the nation’s history, the government has taken on an increasing and successful role in ensuring prosperity, protecting people, and promoting equality, and this success is due in no small part to the contribution of civil servants. Like all institutions, the government fails because its employees let it down, but it also fails because of incompetent political leaders who ignore the advice of knowledgeable and experienced civil servants or reject their advice because it conflicts with an ideological agenda. Andrew Jackson famously thought running the government did not require any special skills, and Donald Trump went even further in thinking that he did not need to know anything about how the government ran or what the civil service advised. The results were disastrous for both presidents and the country. Government needs administration, especially in times of emergency, and government needs public servants like Anthony Fauci to carry out its programs.