Law, not partisanship

My impression is that those who passionately disagree with Supreme Court decisions do so usually because of their policy preferences, not the law. And that is true of partisans on both the left and the right. In "The Greatness of the Constitution Shines in the Birthright Citizenship Case," law professor Jed Rubenfeld considers the arguments made by both the majority and the dissenters in that case, as well as some of the other cases decided recently. If you are inclined to celebrate or deplore the consequences of the decisions, but not consider the reasoning by which they were found, I commend his summary of the arguments.  Toward the end, he writes:

I hope that even those who disagree will see Barbara as a victory for the country and the Constitution. Democrats have declared a constitutional crisis since Trump’s first days in office. They ceaselessly portray the Supreme Court as kowtowing to the administration, giving the president unlimited power to run roughshod over constitutional rights.

Barbara shows once again that American constitutionalism is strong. There is no crisis. As it did in the tariffs case, the Court stood against the president on one of his signature measures. And it did so on a matter of core constitutional principle. I have no doubt that the administration will obey the Supreme Court’s command, as it has in every case thus far.

Since Monday, the Court has issued a spate of important decisions, and for anyone not blinded by partisanship, those decisions show the justices working diligently and effectively to honor the rule of law.

Yesterday, in the mail-in ballots case, the Court again rebuffed the president, allowing states to accept ballots up to five days after the election. The right was furious. In Slaughter, the Court embraced the concept of the “unitary executive,” giving the president the power to fire any agency commissioner at will. The left was infuriated. But in Cook, the Court refused to let the president define as he pleases the kind of “cause” that justifies the firing of a Federal Reserve member. Critics will tabulate only whether the Court came out their preferred way. But all these decisions were rooted in close readings of statutory and constitutional language. I don’t agree with all these decisions, but I see law in them, not partisan politics, and that is a great thing for the country.

On Tuesday, in addition to Barbara, the Court ruled that states may ban biological males from competing on girls’ sports teams, and it found that certain campaign finance restrictions applied to political parties violated the First Amendment. For myself, the trans cases are a victory for common sense and for girls, while the campaign finance case mistakenly conflates money with speech. But even when we disagree with the Court, I hope—on this last decision day of the Supreme Court’s term, and as we celebrate 250 years of American independence—we can see and respect the genius of American constitutionalism. .... (more)

Jed Rubenfeld, "The Greatness of the Constitution Shines in the Birthright Citizenship Case," The Free Press, June 30, 2026.