There is one important throughline across most of the Supreme Court’s biggest decisions this term, and it’s this: The conservatives on the court claiming that bureaucrats are enemies of the Constitution, government workers are irredeemable hacks, and the lawyers tasked with protecting the law are breaking it.
In so many of its decisions over the past few days, on vaccine mandates, religious education, school prayer, guns, election law, and—soon—environmental regulations, the court has evinced profound hostility toward career civil servants who make our government work. This is, intentionally or not, a cynical rhetorical play on Donald Trump’s complaints about the so-called deep state, an effort to tarnish good people who have devoted their lives to diligent public service as hapless at best and hopelessly corrupt at worst. It’s also building the case for the court’s other pet project: the swift dismantling of federal agencies and the administrative state.
This distrust of bureaucrats leaps off the page in case after case. It also emerges as a theme at oral arguments, as conservative justices conjure the image of out-of-control government agents placing ever greater burdens on American liberty. During January’s arguments over President Joe Biden’s vaccinate-or-test mandate for large employers, several justices scorned the government scientists and attorneys who crafted and defended the rule. A majority then blocked the mandate, dismissing the notion that the Occupational Safety and Health Administration has any legitimate expertise on the coronavirus. When the court considered a Maine law that bars public funding of private sectarian schools, these justices expressed disgust that state employees could decide which schools were too religious to receive taxpayer dollars. Justice Neil Gorsuch derided a hypothetical “bureaucrat in Bangor” who evaluated school curricula. (It seems he forgot that the state capital is in Augusta.) Naturally, the majority struck down Maine’s law.
The court’s big Second Amendment case this term also gave the conservative justices a chance to bash government employees—this time, the New York “licensing officers” who regulated the concealed carry of firearms. These officers are asked to decide whether gun owners had shown some elevated need for self-defense that justified public carry. They are usually judges or members of law enforcement—hardly unelected, beady-eyed bureaucrats. Yet during oral argument, the conservative justices took joy in mocking these officials as corrupt to the point of only granting gun licenses to judges and millionaires. In Justice Sam Alito’s telling at oral argument, the primary reason good people who ride the New York subways are at risk is because a group akin to the Three Stooges is tasked with handing out concealed carry permits.
Gorsuch got another opportunity to rail against hapless bureaucrats on Monday when the Supreme Court sided with a public school coach who sought to pray on the football field with students after games. In his opinion for the court, Gorsuch deplored the school district officials who asked coach Joseph Kennedy to pray in private to avoid the appearance of religious endorsement or coercion. He accused these officials of engaging in “censorship and suppression,” spinning a false tale of anti-Christian persecution at the hands of the superintendent, and even accepting the narrative that Kennedy “lost his job” because of his prayers. (In fact, he was placed on paid administrative leave, then declined to renew his contract.)
The record indicates that throughout this fight the school superintendent tried to provide Kennedy with a religious accommodation, which the coach rejected. In Gorsuch’s telling, however, the superintendent was nothing more than a bully and a bigot. School district lawyers, contrary to popular belief and Disney Channel sitcoms, are not hollow-eyed pencil pushers who live to squelch liberty and creativity in red tape and regulation. They are the people who keep our children safe, and healthy, when they are out of the home.
Perhaps because he openly despises the “administrative state”—those many federal agencies that interpret and enforce our webs of complicated regulations and laws—Gorsuch has become the go-to justice when SCOTUS wants to smack down bureaucrats. He flexed this muscle yet again when granting North Carolina Republican legislators the right to defend the state’s voter ID law. North Carolina Attorney General Josh Stein is already defending this law in federal court on behalf of the State Board of Elections. But Stein is a Democrat, as is a majority of the election board, and Republicans are convinced that they are sabotaging the litigation out of distaste for voter ID.
There is no evidence to support this proposition, yet Gorsuch embraced it in his opinion allowing Republican legislators to defend the law. He noted that members of the election board are “appointed and potentially removable” by the governor, a Democrat who opposed the voter ID bill. The insinuation here is that board members would be loyal to the politician who appointed them rather than the law they’re obligated to defend. (Gorsuch has previously castigated the board as a bunch of partisan hacks who try to rig elections for Democrats.) The justice suggested that Stein, a Democrat, would follow the preferences of his own party over his legal obligations. Justice Sonia Sotomayor, in dissent, called out this “startling accusation” as a “grave disservice to the dignified work of government lawyers who each day put aside their own policy and political preferences to advocate dutifully on behalf of their governments and the general public.”
We are not optimistic that this majority will have any more respect for scientists and lawyers at the Environmental Protection Agency when it dismembers the Clean Air Act on Thursday, scuttling the Biden administration’s agenda for new climate regulations. The far-right justices had no regard for the scientists and lawyers at the Centers for Disease Control and Prevention and state public health agencies who tried to keep workers safe from a lethal pandemic. There is no cause for hope that they will have any more respect for climate scientists, whose work some view as illegitimate.
These attacks have dire downstream effects. They allow the justices to substitute their own preferences and policies for those of scientists, lawyers, environmental regulators, and public health experts, who across state, local, and federal government have decades more expertise than a federal judge can ever hope to have. In the process, it also allows them to add to the simmering public distrust of institutions and agencies, and to locate public trust only in the justices themselves and the citizen vigilantes who come to believe that they should enforce laws themselves.
What could go wrong with such vigilantism rewarded at the highest court in the land? Ask the countless public servants, including election workers, who were terrorized by Trump supporters during and after his failed coup. Ask the school teachers and administrators who have been run out of their jobs based on citizen suspicion that they are “groomers” or critical race theorists. Ask the doctors and nurses and hospital administrators who went from being heroes to targets for their efforts to keep Americans safe from COVID. In every context, what is served by discrediting ordinary Americans with expertise and special training as corrupt, incompetent, or partisan is the collapse of an entire class of workers who sought only to serve.
Civil servants are the reason our government functions. Their work is thankless enough without the federal judiciary whipping up a frenzy of antipathy and distrust against them. Republicans like Trump and Gorsuch seem to see these individuals as part of a faceless cabal of plotters, a threat to their own power, or a competing source of authority that must be brought to heel. This rhetoric is dangerous when it emanates from the White House, as we learned from the Jan. 6 hearings. It has no place in written opinions of the once-esteemed Supreme Court.
