The Kingmakers

This article appears in the August 2024 issue of The American Prospect magazine. Subscribe here.

By now, it should be clear to most Americans that the nine unelected, unaccountable, and lifetime-tenured justices on the Supreme Court have more practical power than Congress or even the president. They alone get to define the shape of each branch’s power themselves. They can not only restrict or circumscribe national policy but enact it themselves, because “constitutional interpretation” is often indistinguishable from lawmaking. And they get to do this without half the scrutiny or potential backlash attached to similar actions by the other branches.

The Court’s reactionary approach to lawmaking this past term also made clear just how uninhibited the present conservative majority has become in their exercise of that power, and their easy willingness to toe its bounds or overstep those lines to enact right-wing or Republican Party goals.

On the whole, the 2023 term was among the worst in the Court’s history. Once again, the Court’s rulings call to mind former Justice Thurgood Marshall’s protestation, delivered as he prepared to step down from the Court in 1991: “Power, not reason, is the new currency of this Court’s decisionmaking.”

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It’s important to keep in mind the backdrop to the latest term.

Well before 2024, many Democrats, progressives, and civil rights groups already considered the Court to have an illegitimate makeup, due to Republicans’ unprecedented refusal to confirm Democratic nominee Merrick Garland in 2016, and the fact that five of the six conservatives were appointed by Republican presidents who did not initially win the popular vote. The Court also saw some of the strongest and most widespread rejection of its decisions in the previous two terms, including blockbuster rulings that revoked a woman’s constitutional right to abortion, curtailed the civil rights of LGBTQ Americans, and ended affirmative action for racial minorities in college admissions. That included exceedingly rare international condemnation from foreign heads of state and the United Nations human rights system.

Moreover, as the latest term progressed, the justices became further enmeshed in some of the most scandalous ethics controversies to ever confront the Court, weathering Pulitzer Prize–level revelations of corruption, apparent graft, and personal bias.

With the benefit of hindsight, we can see now that the justices remained entirely unchastened by the surrounding circumstances, choosing to rule on some of the country’s most important and controversial social and policy questions, and consistently delivering right-wing and Republican policy victories. That holds true even when the Court clearly lacks justification for its rulings—legal, logical, or otherwise—and in cases where the justices simply plowed through the most serious kind of apparent conflicts of interest.

Legal experts and commentators have described the decisions and term as among the worst in the Court’s history.

The Court manipulated its calendar in order to issue two rulings that effectively exonerated former President Donald Trump for an unprecedented coup attempt, allowing him to run for president again while also escaping any meaningful criminal responsibility if he loses. To put that differently, six people (again, unelected, unaccountable, and lifetime-tenured) decided how to settle probably the most significant and divisive issue regarding democratic governance that the country has faced in a century and a half, and that’s that. Never mind that there is no good historical or constitutional justification for placing former presidents above the law, nor that a majority of Americans believed that he should be tried before this year’s elections. And no matter that the majority opinions were voted on by at least one justice who has a conflict of interest in the cases.

The ruling granting near-absolute criminal immunity to presidents was so egregiously unsound that the liberal justices advised the public in their dissent to “Feel free to skip over [certain] pages of the majority’s opinion.” Justice Ketanji Brown Jackson wrote that the Court “has effectively snatched from the Legislature the authority” to compel a president to follow the law, thereby augmenting the power of the presidency and of the Court itself, because only judges can decide whether a president has immunity for a particular action. As things stand, the same unelected officials who decided that Trump cannot be prosecuted for a coup attempt are the people who will ultimately decide whether or not any future president can be prosecuted for criminal behavior.

And, as my colleague Paul Starr elaborates on in these pages, the conservative justices granted these sweeping immunities to an ex-president and current candidate who has already made clear that he intends to enact an administration of “ultimate and absolute revenge” against his political rivals as well as Americans who support Democrats. That adds up to roughly half of the voting population.

Another trio of rulings also transferred executive power from hundreds of indispensable federal regulatory agencies to the judiciary (and ultimately to the justices themselves). Taken together, they amount to a major step forward in the conservative movement’s drive to dismantle the administrative state, as Justice Sonia Sotomayor put it.

The central case among these overturned a 40-year-old precedent known as the Chevron doctrine, which required courts to defer to agencies’ scientific and technical expertise as they interpreted legislative statutes. The senseless judicial hubris underlying that ruling was on full display in another recent opinion on environmental law (that made it harder to address climate change), in which Justice Neil Gorsuch referred several times to “nitrous oxide,” or laughing gas, rather than the smog-causing compounds that were actually at issue: nitrogen oxides.

One imagines that the climate scientists and chemists at the EPA and the Food and Drug Administration would probably never make that kind of elementary mistake. That’s exactly why the details of regulation should be left to them, rather than lawyers with exceedingly high self-regard and little practical experience in scientific and technical matters.

The Court also obliterated the statute of limitations to challenge agency rules, ordering in Corner Post v. Board of Governors of the Federal Reserve System that regulated entities can literally reach back to rules established in 1789 and try to nullify them. And in SEC v. Jarkesy, it limited the use of administrative law judges, which dozens of federal agencies have employed for decades.

Importantly, the Court also issued a ruling that ensured that South Carolina will use a racist and gerrymandered electoral map in this year’s election, and allows states to do so in the future as well. A series of earlier rulings by the Court enabling racially biased maps had essentially handed Republicans the House during the 2022 midterms; now, this latest decision in South Carolina’s case established that the Voting Rights Act no longer bars racist gerrymandering unless there’s undeniably clear evidence that many lawmakers intended to discriminate. For example, a group of plaintiffs who present hard evidence that two legislators made openly racist statements, along with other circumstantial evidence of bias, are nonetheless unlikely to prove discrimination under the Supreme Court’s new voting rights standards.

The Court this term also legalized certain forms of bribing public officials; using police to “clear out” homeless encampments; and bump stocks, a combat device that enabled the single deadliest mass shooting by one gunman in American history.

All of these rulings effect a sea change in U.S. politics and society, sometimes on the most pressing issues Americans are presently facing; all of them enact right-wing or Republican policy goals; and all were divided 6-3 along partisan lines.

OF COURSE, THE ISSUES THE COURT DECIDES not to take up, or leaves for another day, are sometimes as important as the ones it decides.

The Court this term punted on cases about whether women can have access to mifepristone, the drug now used in most abortions, and on whether hospitals and doctors can deny women health care if they require an emergency abortion. It also sent back to the lower courts a challenge to Republican-backed laws meant to limit social media companies in their ability to regulate right-wing disinformation.

Some of those outcomes were portrayed as victories for liberals, but for the moment, they simply maintain the status quo (which is already desperate, in terms of women’s right to access reproductive health care). The cases are all likely to soon return to the Supreme Court. Moreover, the Court granted a political advantage to Republicans by punting on more difficult questions about abortion policy in an election year, considering the backlash the party received after broadly restricting the procedures in 2022.

On the other hand, by refusing to hear certain other petitions altogether, the Court effectively created a new category of legal liability for protest organizers that will seriously suppress the right to demonstrate in Texas, Louisiana, and Mississippi; and enabled the continuation of racial discrimination in jury selection. The justices also declined to hear cases challenging life sentences for juveniles, a likely human rights violation unique to the United States; and a challenge to prosecutorial immunity, another Court-created rule that totally shields even cartoonishly corrupt prosecutors from accountability.

Altogether, the Court this term continued a decades-long trend of hearing fewer cases, and this time it took unusually long to decide the highly politically charged questions it took up. The fact that so many involved long-standing right-wing policy goals, and some of the biggest political questions of the present moment, shows that the right-leaning justices behave much more like politicians and lawmakers than they say.

More than two-thirds of the Court’s decisions were decided by 6-3 votes, an unusually high proportion, The New York Times reported. And the most common lineup by far featured the six Republican appointees in the majority and the three Democratic ones in dissent.

Legal experts and commentators have described the decisions and term as among the worst in the Court’s history. The presidential immunity ruling in particular has been described as one of its lowest points, mentioned alongside Dred Scott, Korematsu, Plessy v. Ferguson, Citizens United, and Shelby County.

The decision that reinstated Trump to Colorado’s primary ballot after he was disqualified for participating in an insurrection was the most controversial electoral decision since Bush v. Gore, according to Maureen Edobor, an assistant professor of law at Washington and Lee University.

Anthony Michael Kreis, an assistant professor of law at Georgia State University, commented on the social media platform X that “this has been the worst Supreme Court term for American democracy since Reconstruction.”

The Times also pointed out that the term featured a record rate of concurring opinions, the highest since at least 1937. That points to the weaknesses of the reasoning in the cases, even when the conservative justices agreed on the ultimate outcome.

For example, the case on emergency abortion produced a ruling in which a majority of the justices wrote or joined separate opinions that clearly and fundamentally rejected the premise that the main opinion relied on (which some of them had even joined). In other words, a majority of the justices agreed to punt on the case, but a different majority also agreed that the “justification [for that outcome] is patently unsound,” as right-wing justice Samuel Alito put it in his dissent.

A dissent in the case about prosecuting January 6th rioters was also notable because of Justice Amy Coney Barrett’s unusual, and unusually strong, criticism of her conservative colleagues’ reasoning (and Justice Jackson, who joined the majority decision).

The Court ruled in that case, Fischer v. United States, that federal prosecutors can’t use an obstruction statute to charge hundreds of defendants for violently disrupting the 2020 electoral vote count in Congress.

The majority failed to adhere to the text of the law, and in “abandoning that approach, does textual backflips to find some way—any way—to narrow the reach” of the statute, Barrett wrote. Again, that sounds like policymaking rather than legal interpretation, per Barrett’s characterization.

Time and again, the Court decided the most pressing political questions facing the country; and, time and again, the Court delivered conservative policy victories, while employing scant reasoning or hardly any at all.

Power, rather than reason, has indeed become the currency of this Court’s decision-making, and of its case selection too. The past term made it clear that the nine justices have perhaps more power than any other officials or entity in the country. And it showed that most of them are comfortable exercising that power for its own sake, even without any prudent reasoning—legal, constitutional, or otherwise.

Rule by judicial fiat is far from the design laid out in the Constitution, despite Justice Alito’s public arguments to the contrary. Article III vests the country’s judicial power “in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” (emphasis mine). Congress in fact changed the number of seats on the Court seven times over its first 80 years, for example.

In other words, Congress created the Court—and it can recreate it as well. This Court’s judicial hubris and political activism in recent terms gives the elected branches good cause to use their checks and balances to rein in a wayward third branch.