Supreme Court restores constitutional order in time of political chaos

As Democrats turn the focus to Vice President Kamala Harris as the party’s presumptive presidential nominee just weeks before the Democratic National Convention, the effects of the election are becoming clearer. Through his three successful nominations, former President Donald Trump transformed the Supreme Court in a matter of only four years. In the next four years, we could easily see another justice or two replaced, and the consequences of who fills those seats are likely to ripple for generations to come.

This past year the Supreme Court has given America a masterclass in constitutional governance, and it’s time we all start paying attention. In a momentous term, the court handed down opinions on some of the most contentious matters facing our nation, leaving pundits fuming and politicians scrambling .

Whether you're cheering or jeering the court's recent decisions, the justices have been consistently clear: Constitutional order matters. Lower courts and lawmakers, do your job.

This hallmark of Chief Justice John Roberts's court is a long-overdue pivot from judicial activism to true constitutional fidelity. Limiting its role and interpreting the law as written, not as some wish it to be, the court’s meticulous attention to legal procedure may have frustrated those seeking quick resolutions, but it has upheld the integrity of the judicial process.

The justices have recognized that even the most consequential cases facing our nation must nonetheless follow foundational principles such as separation of powers, ripeness, and standing. In doing so, they have been exercising judicial restraint rather than legislating from the bench. While this approach may seem unfamiliar to those accustomed to more activist courts, it represents a return to an authentic constitutional doctrine long overshadowed by judicial activism.

Rather than inventing new rights out of whole cloth, as some previous courts have done, Roberts's court is recentering the judiciary to its constitutional lane and signaling the other branches of government to do the same.

Take this term’s decision on presidential immunity : The court refused to endorse blanket immunity for presidents. Instead, it recognized the complexity of the constitutional question and that this case addressed a core separation of powers principle that deserves thorough consideration. The court delineated precise types of executive actions and the immunity they might be afforded, then returned the case to the lower court for further fact-finding.

In the Idaho abortion ban decision , the only common ground commanding a majority of the justices was the court had “improvidently granted” certiorari. The court made clear it should not have agreed to hear the case before the proceedings had run their course in the lower courts to determine, among other questions, whether a legal controversy actually exists. As Justice Amy Coney Barrett summarized in her concurrence, “We should not jump ahead of the lower courts, particularly on an issue of such importance.”

In the social media free speech cases , a unanimous court determined that the lower courts had failed to conduct a “proper analysis of the facial First Amendment challenges.” With a reminder that the Supreme Court is “a court of review, not of first view,” the justices sent the cases back down for reconsideration, schooling the 5th Circuit on core free speech principles.

The court applied the same constitutional principles to the Food and Drug Administration case on chemical abortions . In a unanimous but narrow ruling, the justices hewed closely to the rigors of the legal process, finding that regardless of whether the FDA acted improperly, the group of doctors challenging abortion drug expansions lacked standing to sue. They were not the right plaintiffs. As the late Justice Antonin Scalia pointedly put it, the question of standing is simple: “What’s it to you?”

And in the case of the herring fishermen versus the federal government , which overturned the legal doctrine known as the Chevron deference, the court recalibrated a system of federal checks and balances that had gone askew. In reinforcing the principle that statutory interpretation is the bailiwick of courts rather than agencies, the majority grounded its analysis in the separation of powers and the judiciary’s obligation to exercise independent judgment.

For decades, Congress has been content to let the courts do its dirty work. The political branch has postured and politicked rather than fulfilled its role as the primary lawmaking and law-refining body of the nation. Lawmakers have avoided tough votes that might anger their base or endanger their reelection, and they have abdicated their responsibility to address crucial matters through legislation.

This gridlock has created a vacuum that the Supreme Court, willingly or not, has at times filled by interpreting vague laws or devising new ones to fill a void through judicial fiat. We need lawmakers who will tackle challenges head-on with a renewed commitment to bipartisanship and compromise, engage in good-faith negotiations, and craft laws that can withstand judicial scrutiny.

We also must have a national conversation about the proper role of the judiciary. While the Supreme Court plays a vital role in protecting constitutional rights and resolving legal disputes, it is not the primary arena for settling political and social controversies.

This conversation demands that we support originalist jurists at every level of the judiciary who will hold fast to our nation’s founding document and to the original understanding of our duly enacted laws. Without this, our legal system will crumble around us.

Finally, we must resist the temptation to view every court decision through a purely partisan lens. The Constitution is not a living, breathing document that changes with the times. It is the bedrock of our republic, designed to withstand the whims of passing political fashions.

Our preferred policy outcomes are not constitutional rights just because we really want them to be. The health of our nation depends on respecting the integrity of our institutions, even when we disagree with their decisions.

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The battle for America's soul is being fought in courtrooms and legislative chambers across the nation. Our founders gave us “a republic, if we can keep it.”

It's time we started acting as if we want to.

Catherine Glenn Foster , M.A., J.D., is a constitutional attorney and president and CEO of First Rights Global. Follow her on X @cateici .