So, rather than grapple with the core religious-liberty issue in the Maine case, Barrett and Kavanaugh ducked it, rationalizing that the supposedly novel questions raised should not be addressed through the hurried procedures of the Court’s emergency docket. As I observed in the column, the emergency docket is the au courant fetish of progressive legal scholars, who had little complaint about it when the Court had a more robust progressive bloc during the Trump administration. It is now problematic, though, because claimants are turning to an ostensibly conservative Court to protest the diktats of Democratic federal and state administrations. By what passes for Washington logic, Barrett and Kavanaugh are expected to prove to Democrats that the Court is nonpartisan by turning a blind eye to the constitutional anomalies of Democratic governance.

It is dismaying, to put it mildly, to find the two newest justices swayed by such bombast — and to watch as Kavanaugh is pressured into doing the politically expedient rather than the obviously correct thing in the eviction-moratorium case, while Barrett feels the need to give public assurances that “this Court is not comprised of a bunch of partisan hacks.” Of course, to speak in such terms is already to have lost. Conservatives do not see constitutionalist rulings as partisan hackery just because “living Constitution” progressives portray them as such. With due respect to Justice Barrett (for whom I have great respect), it is not worth worrying about partisan hacks demagoguing conservative-constitutionalists as partisan hacks. To respect the Constitution’s limits on government and on the Court is not partisan. In fact, it could very well result in the adoption of policies we intensely dislike as long as that is done democratically.