This article originally appeared in the December 18, 2022 Concord Monitor.

This Supreme Court doesn’t much care for stare decisis, meaning respect for precedent. We know that from the Dobbs case, overruling Roe v. Wade, and by the end of this term we will know it again with the likely overruling of multiple affirmative action precedents.

Originalism has freed a majority of justices from the bonds of precedent. In their view, the Constitution’s meaning was fixed a long time ago, and those earlier Supreme Courts should have known better than to think it evolved over time.

Originalism isn’t the only ism now in vogue. Activism has also taken a firm grip. This Court seems indifferent to traditional boundaries. As explained in DaimlerChrysler Corp. v. Cuno (2006): “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal court jurisdiction to actual cases or controversies.” (my italics).

This principle is rooted in Article III, Section 2 of the Constitution, the “case or controversy” clause. What it means is that you can’t just call up the Supreme Court, or send a text, and ask for a ruling on this or that question. It also means that the justices can’t come to work one morning and agree that “Today we’ll let everyone know how we feel about [fill in the blank].”

Our adversarial system means that, with rare exceptions, the parties don’t start at the Supreme Court. They begin in the lower courts, or in administrative agencies, where parties taking opposite positions make out their claims or defenses. The pleadings, testimony, exhibits, and rulings create the record on appeal and define the legal issues. Once a Supreme Court decision goes beyond that record, the justices have crossed over from judicial decision-making to legislative policymaking.

The question raised by the record in the Dobbs case was whether Mississippi could disregard the “viability” doctrine established in Roe and ban most abortions after fifteen weeks of pregnancy. At first, Mississippi was content to limit the case to that issue. But after Justice Barrett was sworn in, the state changed course and asked the Court to overrule Roe entirely.

Chief Justice Roberts wanted to limit the ruling to the 15-weeks issue, but his five conservative colleagues chose to go beyond the record and overrule Roe v. Wade. It is remarkable enough when the Court undoes fifty years of Fourteenth Amendment protection for reproductive rights. But to do so unnecessarily borders on arrogance.

These five justices —Thomas, Alito, Gorsuch, Kavanaugh, and Barrett—make up the most activist Court in memory. Judicial restraint, long the battle cry of conservatives, is out of fashion.

Like many states, Colorado requires anyone offering services to the public to do so without regard for numerous factors, including sexual orientation. A Colorado wedding website designer named Lorie Smith wants to be constitutionally exempt from doing business with gay couples because her religion frowns on same-sex marriages. The issue the Court agreed to consider was not freedom of religion but rather the First Amendment right not to speak. On December 5, 2022, the Court spent nearly two and a half hours hearing Ms. Smith’s appeal in the case of 303 Creative v. Elenis.

In 2018 Jack the Baker claimed in the Masterpiece Cakeshop case that making a one-of-a-kind cake for a gay wedding celebration would carry the message that he approved of the marriage. Now, Ms. Smith says that requiring her to create websites for such unions would be forcing her to send a message contrary to her beliefs.

We can put off to another day whether a customized wedding cake or a website’s design impliedly expresses approval of a particular type of marriage. And we can also postpone the worrisome question of whether a decision in Ms. Smith’s favor will open the door to exempting providers of “communicative” services from interracial or interreligious or divorcees’ marriages, which probably violate some people’s religious beliefs.

My problem, and it’s more than a quibble, is that the Supreme Court took the case in the first place.

Nowhere in the record on appeal will you find the names of a gay couple whom Ms. Smith turned down, or who even sought out her services. There are no such people. She just wants to hang out a virtual sign saying, “No gay couples need apply.” In other words, unlike the Masterpiece Cakeshop case, there is nothing adversarial about the case.

Jack the Baker won his case on the narrow grounds that a member of the Colorado Civil Rights Commission displayed hostility to religion, thereby denying Jack a fair hearing. Since then, the Court’s conservative members have been lying in wait to decide what was then left undecided.

The Court has an off-ramp here, which would be to dismiss the appeal on the ground that review was “improvidently granted” for lack of a case or controversy. But that won’t happen, and Ms. Smith will almost surely prevail. This Court’s justices tend to wear their predispositions on the sleeves of their robes.

Besides, judicial restraint is for sissies.