Conservatives and liberals are quickly changing positions on a host of issues, now that there is a secure conservative majority at the Supreme Court. Examples include standing, textualism, agency deference, positivism, and more.
I have been beating this drum for some time, but most of my arguments (like related arguments by other scholars) have been inferential. In other words, the ongoing realignment is rapid and dramatic, but largely undeclared. People, groups, and movements are repositioning, yet they have not come right out and said so. Nor have the repositioning actors pointed out that their discrete pivots are interrelated, yielding a realignment across domains.
Lately, however, there are signs that some justices are self-consciously declaring a systemic change in outlook.
The best example is Parents Protecting Our Children v. Eau Claire Area School District, a much-discussed denial of certiorari over three dissenting votes. Parents of children enrolled in public school challenged policies surrounding “Gender Identity Support.” The parents argued in part that they have a right to know if their children are undergoing or considering gender transition at school.
A unanimous Seventh Circuit panel, containing both Democratic and Republican-appointed jurists, rejected the claim for want of standing. The Supreme Court denied certiorari earlier this month. Justice Alito, joined by Justice Thomas, wrote a dissent from the denial, and Justice Kavanaugh separately noted that he would have granted the petition.
Alito’s opinion reflects two major and interconnected pivots. The first involves standing.