The Supreme Court Just Keeps Deciding It Should Be Even More Powerful
Whatever conservative ethos of restraint there once was has vanished.
By its own maneuvering, the modern Supreme Court has made itself the most powerful branch of government. Superior to Congress. Superior to the president. Superior to the states. Superior to precedent, procedure, and norms. In effect, superior to the people.
Most talked about in this regard, of course, is the Court’s ending of long-established reproductive rights in Dobbs v. Jackson Women’s Health Organization. But the assertion of extreme power extends well beyond the issue of abortion.
For example, in a case called TransUnion LLC v. Ramirez, the conservative majority in 2021 narrowed Congress’s Article I power to give consumers the right to sue over data deliberately mishandled by credit-reporting agencies, reasoning that the legislature can only recognize theories of harm analogous to ones that existed as a matter of “American history and tradition.” And this year, the Court is considering a handful of lawsuits by states challenging the exercise of discretion by the executive branch on the theory that federal policy affects state budgets, which could effectively enable states—and thus the Court—to function as the ultimate overseers of federal policy. One of those, Haaland v. Brackeen, is poised to possibly upend roughly two centuries of Supreme Court precedent that recognizes American Indian tribes as political sovereigns, as well as Congress’s plenary power over American Indian affairs. The outcome of the case, which involves a decades-old federal statute that sets child-welfare standards for American Indian children, could put hundreds of U.S. tribal treaties at risk as well.
The mere fact that the Court agreed to consider these and other extraordinary claims this term exposes the right-wing majority’s appetite for asserting massive power under the auspices of judicial review.
In a November essay for the Harvard Law Review, the Stanford Law School professor Mark A. Lemley describes this Court as an “imperial” one that has embarked on “a radical restructuring of American law across a range of fields and disciplines.” The means run along two lines: substantive changes to the Constitution made under the guise of interpretation, and procedural power grabs executed despite traditions of deference. This has pushed our constitutional system dangerously off balance, with little opportunity for correction.
Ironically, the danger comes from the “conservative” wing of the Court, born in part out of a purported rejection of “activist” court decisions, which it criticizes as policy making—territory that belongs to the elected branches of government. All six of the purportedly conservative justices—Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—have professed a commitment to textualism and originalism, methods of constitutional interpretation that theoretically should constrain judges’ discretion to the “plain” language of the text, with occasional reference to historical understandings of the Framers’ contemporaneous intent. Many folks blithely assume that the right-wing justices are more restrained than their progressive counterparts as a result. The precise opposite is the case.
Neither textualism nor originalism can possibly answer every thorny question about the ambiguous language that fills the relatively terse, 236-year-old constitutional text. Judges judge, after all—meaning they exercise discretion, often subjectively. For example, in both Dobbs and the controversial Second Amendment decision in New York State Rifle & Pistol Association v. Bruen, which permanently clipped the power of states to regulate public safety with regard to guns, Justices Alito and Thomas in their respective majority opinions picked and chose snippets of history that favored one outcome while rejecting others, and offered no guiding principle for deciding which “originalist” evidence is worthy of deference and which is not. Given this intellectual dissonance, the most logical conclusion is that these justices’ claimed adherence to a superior judicial philosophy is merely a smoke screen for something else: ideology. Whatever conservative ethos of restraint there once was has therefore vanished.
What will constrain this Court? Not its constitutional philosophy, and not respect for precedent either. The decision in Dobbs was stunning not just because it gutted a constitutional right many counted on. It was also a snub to the vitality of judicial precedent itself, which has long operated as a check on the power of the Supreme Court.
What about states? No, their power won’t constrain the Court either, despite the traditional conservative concern for states’ rights. To be sure, in Dobbs, the Court gave state legislatures the power to regulate abortion, but in Bruen, the same Court struck down a more-than-100-year-old New York State handgun-licensing law that regulated the carrying of concealed weapons in public. Dobbs enhanced state legislatures’ control over abortion. Bruen took it away over guns and public safety.
Conservatives’ traditional respect for the relative power of the presidency is faring no better. Under President George W. Bush, a predominant theme of legal conservatism was the “unitary executive theory,” which granted unbridled power to the White House during times of war. At the Department of Justice, John Yoo famously wrote the “torture memos” that green-lit military interrogations, use of force, rendition, and intelligence gathering unconstrained by domestic or international law—on the rationale that the Constitution assigns all executive power to the president.
The current Supreme Court has taken a substantially different approach. To be sure, in Trump v. Hawaii, it upheld President Donald Trump’s power to restrict entry of foreign nationals from certain countries, even in the face of possible First Amendment violations, as a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” But this term, under the same Immigration and Nationality Act, the Court is considering a challenge brought by the states of Texas and Louisiana to the Biden administration’s guidelines that set forth priorities for use by immigration officers in determining which noncitizens to apprehend and remove. If the Court uses this case to dilute the president’s discretionary law-enforcement power over immigration, which, as the Justice Department argues, is “deep-rooted” in the separation of powers, it could turn federal judges into “virtually continuing monitors of the wisdom and soundness of Executive action.”
Meanwhile, the Court has undertaken an assault on the power of executive-branch agencies to enact regulations—and on Congress’s power to empower agencies in the first place. Since its 1984 landmark decision in Chevron v. Natural Resources Defense Council, the Court has deferred to agency regulations so long as those regulations comport with the authority given by Congress. Last term, the Court blew a hole in what’s known as “Chevron deference” and replaced it with an amorphous “major-questions doctrine,” which essentially gives the justices unfettered discretion to select which handoffs of legislative power to agencies it doesn’t like. If it sees a “major” question—as it did with climate-change policy in a case called West Virginia v. EPA—it will no longer tolerate congressional delegations of rule-making authority to agencies unless the delegation is sufficiently precise. But that’s a “know it when we see it” requirement that neither Congress nor agencies have any way of predicting in advance of a legislative or regulatory undertaking.
The Court has also usurped Congress’s Article I power to protect ballot access, unabashedly legislating from the bench in a case called Brnovich v. Democratic National Committee. There, a 6–3 majority added a multifactor test for plaintiffs seeking to challenge voting restrictions under Section 2 of the Voting Rights Act—even though Congress saw fit to broadly forbid any voting law that “results in a denial or abridgement” of the right to vote on account of race, such as when elections are “not equally open to participation” by all. Unconstrained by the plain language of that law, the Court added hurdles to Section 2 that it apparently perceived as missing—despite a textual lack of constitutional authority to do so.
The justices’ usurpation has extended to their Article III colleagues on the lower federal bench. The Constitution references only the Supreme Court but empowers Congress to create the lower federal courts, which it did almost immediately after ratification with the first Judiciary Act of 1789. Congress also defines the scope of the judiciary’s power to hear categories of cases, which with rare exceptions are initiated in the lowest federal courts. Those courts’ decisions go to appellate courts for review. A select few of those decisions are then accepted for final review by the high Court.
The beauty of this hierarchy is that issues develop and percolate over time, nuances are hashed out, and different parties weigh in. By the time the Supreme Court accepts a case on a writ of certiorari, there is already a rich factual and legal backdrop that maximizes the potential for a transparent outcome of high quality. And the deliberative process does not end there. Over a period of months, the Court accepts lengthy briefing by multiple parties, including amici curiae, whose diverse perspectives ensure a thorough airing of matters of enormous significance to the regular citizenry. It then holds oral argument to flesh out any concerns.
Not only has the modern Court bypassed its own full briefing and argument at an unprecedented pace, issuing more “emergency” orders—which are short and devoid of meaningful explanation—than it has regular opinions, but in some instances, it has skipped the intermediate appellate courts altogether. The trouble is, many of its quick-and-dirty rulings have had enormous substantive implications. It refused to stay Texas’s six-week abortion ban—even though Roe protected abortion access until viability at about 24 weeks’ gestation—on an emergency application. It struck down New York’s occupancy restrictions for religious services and blocked Biden’s eviction moratorium—both on emergency applications during the height of the coronavirus pandemic. It reinstated for the 2022 midterms an Alabama electoral map that a lower court has said was likely illegal on an emergency application. And it used an emergency order to restore a Trump-era policy that made it harder for states to block projects that could pollute waterways, prompting Justice Elena Kagan to complain that “the Court’s emergency docket [is] not for emergencies at all,” instead “becom[ing] only another place for merits determinations—except made without full briefing and argument.”
The Constitution’s fluid nature means all this power must go somewhere—and it’s going straight back to the Court itself. The collective result of these maneuvers is that the Court now has more discretion to say with constitutional permanence what national policy is, how future policy gets made, and who decides what’s in and what’s out. And the justices keep choosing themselves.
This is not how it is supposed to work. A too-powerful, unaccountable Court is a threat to the entire system. Short of a constitutional amendment retracting their life tenure, or a filibuster-proof majority in the Senate willing to do controversial things such as restricting the Court’s jurisdiction or expanding the number of justices, there’s nothing the voting public can really do about this political power grab and its lasting impact on the lives of millions. As Chief Justice Roger Taney wrote for the Court in 1849, “If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order.”