What’s startling about Roberts, Kavanaugh, and Gorsuch’s questions in particular is that they seem to betray fundamental principles of the court’s conservative bloc. Gorsuch has disclaimed reliance on international law, proclaiming: “We have our own tradition and our own history. And I don’t know why we would look to the experience of other countries rather than to our own when everybody else looks to us.” Kavanaugh, echoing a Republican mantra, has argued that international law has virtually no role in the American legal system outside of treaties. (Even more disturbingly, the two justices seem to have derived their international law questions from an amicus brief filed by Eagle Forum, a fringe reactionary group founded by Phyllis Schlafly.)
Meanwhile, Roberts, who seemed so deeply concerned about the Voting Rights Act on Tuesday, has written and joined opinions gutting it of its force. And deference to executive agencies? Seriously? The contemporary conservative judicial philosophy, touted by Gorsuchand Kavanaugh, is rooted in opposition to agency deference. Yet the conservative justices want to defer to an unelected bureaucrat’s manipulation of the census. A greater hypocrisy is difficult to envision.