An updated edition of The Supermajority: How the Supreme Court Divided America was released this month in paperback.
The Supreme Court term nears its end. Twenty-eight cases remain to be announced, an unusually high number. Brace for impact.
Already we know how this term will be remembered. At least, we can strongly guess.
To begin, the Court already took its most significant step by agreeing to hear Donald Trump’s bid for immunity from prosecution for his effort to overturn the peaceful transfer of power. By studied inaction, the right-wing justices engineered the Court’s most egregious intervention in the political process in memory. Maybe ever.
Legally, it’s an easy case: Trump is not immune from prosecution. Special Counsel Jack Smith asked the Court to quickly clear that up last year. The justices refused and scheduled argument for the last hour of the last day of the term. They will likely still rule against Trump at least in part. We will hear ringing oratory. “No person is above the law.” “Presidents are not kings.” But the justices have already granted Trump what he craved: time. They guaranteed that Americans will not get to see the evidence against Trump before casting their votes.
This term will also be remembered for the Court’s continued assault on government’s ability to protect public health, the environment, and fair markets. Legal conservatives have long sought to wind back the clock to 1937, the year the Supreme Court relented in its showdown with Franklin Roosevelt and let the federal government protect workers, children, and consumers. Legal reactionaries mark this as the beginning of a “Constitution in exile.”
In West Virginia v. Environmental Protection Agency in 2022, the supermajority invented a new “major questions” doctrine. Regulators cannot act — in that case, on climate change — even if they have statutory authority to do so if the topic is too, well, “major.” That capacious term is not defined. It seems to mean that if a Federalist Society judge doesn’t like a regulation, it is “major” and thus null.
This term the justices will almost certainly undo what’s left of “Chevron deference” in a case called Loper Bright. For four decades, judges, who are not subject-matter experts, have deferred to the decisions of regulators, who are hired for their expertise, when a statute doesn’t provide clear direction. Chevron is the most cited administrative law case in Supreme Court history, and it was once beloved by conservatives. (It dates from a time when Justice Neil Gorsuch’s mother was the rambunctious right-wing administrator at the EPA. It aimed to protect Reaganite officials from meddling liberal judges. Sounds like sci-fi, I know.) The influence of Chevron has been waning since its great champion, Justice Antonin Scalia, died. But lower courts still extensively rely on it, and its final undoing, plus the invention of the major questions doctrine, will make it much harder for government to act.
To be sure, in other cases the Court may throttle back some extreme doctrines. The Rahimi case, for example, confronts the implications of the new and nutty idea that gun laws are only allowed if they follow “history and tradition,” meaning the gun laws of the 1790s. (Rahimi engaged in domestic violence, a practice that was legal back then.) On other regulatory matters, the Court has rejected some of the extreme notions from the U.S. Court of Appeals for the Fifth Circuit, the rootin’-tootin’ Texas-based court that routinely takes right-wing tweets and turns them into judicial rulings.
When the justices announce these decisions, we may hear purring praise about the new moderation of the Court. Don’t believe it. It has already showed itself to be not just a conservative Court, or a Republican Court, or a Federalist Society Court. For the first time, it showed itself to be a MAGA Court.
The Court’s credibility has collapsed. Public trust is near the lowest level ever recorded in polls. Justice Samuel Alito’s explanation of why he flew insurrectionist flags at two homes has been shredded. (“My wife is fond of flying flags” will not make it into the annals of memorable quotes.) Justice Clarence Thomas, meanwhile, just disclosed that he took more in private gifts and funds than the rest of the justices put together.
While the scandals pour forth, the Supreme Court — nine unelected officials, installed for a lifetime — continues to remake American life and law at breakneck speed. This year it’s government regulation and the presidency. In the past it has been reproductive rights and the Second Amendment. Decades of reactionary social policy crammed into a few days every summer. We take it for granted that every June, we will wait breathlessly to find out what their rulings are, and what kind of country we will live in.
What could come next? Donald Trump may win the election. His top policy advisers call for a “post-constitutional era.”
We need a strong Supreme Court ready to stand up for constitutional values and the rule of law. Instead, it seems, we have one in thrall to right-wing power politics. Those of us girding to battle for the rule of law already have all the evidence we need: we cannot rely on the Supreme Court.
