A paradox haunts books by contemporary Supreme Court justices. Publishers give the justices huge sums—$2 million, in the case of Justice Amy Coney Barrett—to write monographs insisting that Supreme Court judging is apolitical. Publishers provide these guarantees because Supreme Court judging in the United States is hyperpolitical: Partisans can be trusted to buy and praise the books written by justices on their side of the political fence. 

This paradox has a predictable literary consequence: The books are almost always bad. Recent books by Justice Neil Gorsuch and former Justice Stephen Breyer were widely and rightly panned by reviewers, though purchased in large numbers by partisan readers. Neither book explained why publishers, bookstores, producers, and influencers roll out red carpets for people whose primary job is supposedly to follow, to the letter, instructions given in past centuries.

Justice Barrett’s new book, Listening to the Law, meets the low bar set by her colleagues. She promises an accessible (not scholarly) insider’s guide to Supreme Court practice. The justices, Barrett tells us, like one another, attend parties together, and manage to disagree without rancor. Judging, she insists, is a matter of humility, of listening carefully to the law made by others. Apart from an informative discussion of textualism, the method with which Barrett is most associated, the book offers no account of why serious scholars—including, one suspects, Professor Barrett—think actual judicial practice is far more complicated than simply discovering (or “listening to”) the law made by others. The effect is less analysis than campaign biography, a self-presentation in the style of politicians explaining why they can be trusted with power.

The resemblance to political memoir is not accidental. Barrett, like her colleagues, aims to humanize herself. She assures readers that her pre-Court “life was good, but like anyone’s, it was not perfect”; that “these last years of being in the public eye have toughened me up”; that “all human relationships depend on kindness and humility.” Such bromides could have been lifted from a stump speech. Justices, like candidates, must persuade their audiences that they are relatable, trustworthy, and possessed of the moral fiber to do their jobs. The difference is that candidates eventually face voters. Justices, armed with life tenure, face only history.

Indeed, one of Barrett’s most insistent themes is precisely that life tenure guarantees independence. “The Constitution’s guarantees of life tenure and salary protection for federal judges,” she writes, “are designed to fortify a judge’s resolve to stand firm against the tide of public opinion.” The only evidence she provides for this claim is Alexander Hamilton’s assertion, made more than 200 years ago in Federalist no. 78, that “nothing will contribute so much as [life tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” Throughout, Listening to the Law celebrates the “genius” of the Framers. What was good enough for 18th-century minds ought to be good enough for 21st-century citizens.

An accessible guide to constitutional practice might note that very few constitutional democracies grant judges life tenure, and those that do (Canada and the United Kingdom) still require retirement no later than 75. Those judiciaries seem at least as independent as federal courts in the United States. A Brennan Center for Justice study by Lisa Hilbink of the University of Minnesota found that other democracies achieve judicial independence through shorter terms, mandatory retirement, or both, with no decline in performance. Indeed, the supreme court of Israel, which imposes mandatory retirement no later than 70, has far more aggressively challenged Prime Minister Benjamin Netanyahu’s policies than the U.S. Supreme Court has challenged Donald Trump’s policies. Similarly, the lack of life tenure has not inhibited the supreme courts of India and Germany from declaring constitutional amendments unconstitutional. 

Equally central to Barrett’s civics is the notion that judicial review exists to protect minorities from majority tyranny. Aware of our fallibility, the wise Framers of the Constitution created an institution that would ultimately declare segregated schools unconstitutional, protect free speech from local censors, and prevent police officers from physically abusing persons suspected of crime. The trouble, which Barrett conveniently neglects, is that the most difficult and consequential cases pit one minority against another. Consider Fulton v. Philadelphia (2021), which concerned whether the city could exclude a Catholic foster care agency that refused to work with same-sex couples. Both parties plausibly claimed to be protecting vulnerable minorities. Philadelphia argued that it was protecting LGBTQ families from discrimination; the Catholic agency argued that it was being discriminated against for its religious beliefs. 

History also undermines the slogan. Before Brown v. Board of Education (1954), it is difficult to identify a Supreme Court decision striking down a federal law most Americans would now say protected deserving minorities. More often it went the other way: Dred Scott (1856) denied Congress the power to ban slavery in the territories; the Civil Rights Cases (1883) voided Reconstruction-era protections; Pollock (1895) struck down the federal income tax; Carter Coal (1936) invalidated New Deal reforms. Slaveholders, too, claimed the mantle of an oppressed minority. As today, one person’s “worthy minority” was another’s entrenched interest, and few historians would tally the Court’s record as consistently protective of the vulnerable.

The deeper problem is not just that the Court often failed in practice, but that it has never had a clear method for identifying which minorities deserve protection. That choice is inherently political, so Barrett just ignores it. Listening to the Law never even hints at the difficulty of identifying the minorities that merit judicial protection, or whether the history of judicial review evinces any tendency for courts to make the right choices in this regard. Once one looks at the actual record of judicial review, what emerges is less a steady defense of the downtrodden minorities than a scattershot series of interventions, many of them on behalf of entrenched elites. 

As Mark Tushnet has noted, judicial review amounts to “noise around zero,” producing essentially random deviations—sometimes good, often bad—from what the political system would otherwise generate. When a pattern can be discerned, it is a tendency to side with the executive over Congress and with legal elites when they differ from the less educated or less wealthy. Professor Barrett is almost certainly aware of this scholarship, but Justice Barrett leaves readers with the comforting civics textbook version, assuring them that courts stand reliably with the powerless when in fact the historical record points to something closer to the opposite.

Listening to the Law likewise assures readers that justices decide cases on law, not politics. A few anecdotes about particular justices, Barrett’s willingness to sustain death sentences despite her moral opposition to capital punishment, and statistics demonstrating that approximately half the decisions the justices make are unanimous constitute the entire evidence for this assertion. No scholar paints with so broad a brush. A high percentage of the Supreme Court’s unanimous decisions concern matters such as the proper interpretation of the Employment Retirement Income Security Act (ERISA), a matter on which most people who are not retired have weak if any policy preferences. 

As politically conscious citizens observe, when the justices decide major cases on which the political parties divide, the justices appointed by Republican presidents almost always take positions favored by the Republican Party and the justices appointed by Democratic presidents almost always take positions favored by the Democratic Party. Consider abortion, campaign finance, and the recent Supreme Court practice of using the emergency, or shadow, docket to block lower federal court rulings temporarily enjoining Trump administration executive orders. A citizen who bet at even odds that the justices would vote consistently with the president that appointed them would gain a fortune. When exceptions exist, the tendency is for the justice to side with more moderate members of the party against more extreme members. That some Roberts Court justices may side with the Wall Street Journal editorial page over Donald Trump when the justices rule on tariffs hardly demonstrates a court above politics.

The free exercise clause offers perhaps the starkest example of politics shaping judicial decision making. During the second half of the 20th century, conservative originalists were committed to the proposition that the free exercise clause as originally understood provided religious believers with no exemptions from generally applicable laws. This point was emphasized in the Reagan administration’s Guidelines on Constitutional Litigation in 1988, a core statement of conservation constitutional principles at the time. Justice Antonin Scalia made it explicit in Employment Division v. Smith (1990), holding that worshippers had no right to use peyote in religious ceremonies when Oregon law banned the drug entirely. 

By the early 21st century, however, evangelical Protestants—core members of the Republican coalition—became the typical free exercise claimants. A miracle promptly occurred. Republican-appointed justices discovered that the 1791 clause had always guaranteed exemptions, or that laws burdening evangelicals were exceptions to the no-exemptions principles. Who knew? Religious organizations may now engage in what would otherwise be considered employment discrimination by designating employees or teachers as ministers, as decided in Our Lady of Guadalupe School v. Morrissey-Berru (2020). 

The near-perfect correlation between partisan affiliation and votes goes unacknowledged in Listening to the Law. The message is simple: Trust us.

This, finally, is the problem with the genre itself. By presenting judging as a realm of pure law, insulated from politics, the justices offer a picture so implausible that it makes the opposite claim—that judging is nothing but politics—more credible. In their effort to inspire confidence, they deepen cynicism. If the only choices are civics class pieties or unvarnished partisanship, many readers will conclude, not unreasonably, that the latter is closer to the truth. Publishers, of course, will not mind. Judicial celebrity sells, and the market for reassurance is deep. Barrett closes with optimism that the constitutional project will endure, with no hint of constitutional crisis or recognition that many Americans believe one already exists. That is for serious studies of law and politics. Barrett’s purpose, like that of her colleagues’ books, is to persuade readers that all will be well so long as the justices remain in charge.

The post Justice Barrett’s Campaign Biography appeared first on Washington Monthly.

On October 7, the conservative majority of the Supreme Court appeared eager to set back Colorado’s LGBTQ-affirming legislative legacy—and gay and transgender rights more broadly. During oral arguments in Chiles v. Salazar, the Court’s conservative justices raised concerns about the state’s statutory ban on conversion or “reparative” therapy, on the books since 2019, and its apparent threat to Christianity-informed free speech. 

On the evidence of the Justices’ questions, a ruling against the Colorado statute seems likely. That setback would follow the Court’s anti-LGBTQ decisions from last term: Skrmetti v. Tennessee (2025), which supported bans on gender-affirming health care, and Mahmoud v. Taylor (2025), which allowed religion-compelled parents to opt their children out of public school story hours featuring LGBTQ-affirming books.  

“Conversion therapy” attempts to alter a person’s sexual orientation or gender identity so that they comply with anti-LGBTQ ideological commitments. As a therapeutic practice, mainstream medical professionals have widely rejected it—and it has been outlawed in over 23 states. Mental health professional organizations agree that identifying as LGBTQ is not a mental disorder, and that attempts to change someone’s sexuality or gender identity are at best ineffective and at worst actively harmful to patients. The practice includes anything from “talk therapy” that treats LGBTQ individuals as in need of a “cure,” to electric shock or pharmaceutical interventions. These practices persist, largely underground, in defiance of current bans. 

Colorado’s law bans medical interventions that cast LGBTQ individuals as mentally ill. A former conversion-therapy client of Colorado’s Focus on Family described the ban as “guiding people to the best version of themselves” by nurturing practices that are “beneficial, healing, and can save lives” and outlawing “therapy where [the] only…outcome considered successful is harmful.” In other words, the practices prohibited by the ban are those focused on the singular goal of encouraging a client to reject their LGBTQ identity.   

Kaley Chiles, a counselor licensed by the state to treat addictions, argues that the Colorado law violated her First Amendment rights by outlawing her ability to counsel sexuality- and gender-questioning youth who are seeking Christianity-informed therapies to help them resist their same-sex sexual desires and their gender dysphoria.  

Colorado is no stranger to Supreme Court fights over LGBTQ rights. The state is, paradoxically, home to the most vociferous anti-LGBTQ movement leaders and the most progressive LGBTQ-affirming policies—making it ripe for contentious legal and political rifts. In Romer v. Evans (1996), the Court overturned a 1992 voter initiative that branded Colorado “the hate state.” The ballot measure, organized by the Colorado Citizens’ Commission, barred gays and lesbians from seeking any state or municipal legislative protections from sexuality-based discrimination.  

Colorado quickly shed its “hate state” identity by updating its anti-discrimination measures in 2008 to include sexual orientation and gender identity. Yet almost ten years later, the state was back in Court—this time in a conflict with Christian wedding service providers. In a 2017 case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court sided with a Colorado baker’s claim that the state’s nondiscrimination laws violated his Christianity-informed expressive rights to refuse to bake a wedding cake for a gay couple’s upcoming nuptials. Six years later, in 303 Creative v. Elenis, a Christian wedding videographer blamed the state for “chilling” her desire to design wedding websites exclusively for heterosexual couples. Once again, the Court rebuked the state’s LGBTQ nondiscrimination laws in favor of Christian business owners who oppose marriage equality.  

Chiles raises parallel substantive questions about the double helix of free exercise and free speech. Does the conversion therapy ban impose similar harms to Christianity-informed free speech that the Court outlawed in Masterpiece Cakeshop and 303 Creative? 

Assuming Chiles has standing to sue (a subject of some disagreement), the Court will have to determine whether her claim should be reviewed under the highly demanding “strict scrutiny” test, and, if “strict scrutiny” is warranted, whether the Court should send the case back to the lower Court or render judgment now. Two lower federal courts agreed with the state that the ban regulates medical conduct rather than speech and thus should be reviewed under the forgiving “rational basis” standard, as are other laws regulating medical care.  

Under a rational basis review, the state only needs to provide a reasonable rationale for banning conversion therapy—one that can easily be justified within the state’s normal efforts to protect the health and welfare of its citizens. Under strict scrutiny–a standard of review used only when a fundamental right has been abridged or when a suspect or spurious social classification (such as race or religion) is targeted by the legislation–the state faces a much higher evidentiary burden. In the case of a ban on conversion therapy, they must present evidence that Chiles’s type of talk therapy harms children.  

If the Court agrees with Chiles’s request for strict scrutiny, it has two options: to decide the case under this higher standard of review immediately or to send it back to the lower courts, as is typical, with instructions to reevaluate the evidence under the more rigorous standard. Chiles requests that the Court decide immediately, as it did last term in Mahmoud v. Taylor (the case involving parental opt-outs for school-based story hours with LGBTQ-affirming books), to address the supposed “irreparable” and “ongoing harm” that legislation and pending litigation have caused Chiles and her potential clients.  

Speech v. Conduct 

At oral argument, Justice Ketanji Brown Jackson pressed James Campbell, Chiles’s lawyer, to explain how her therapy differs from the many other medical interventions the state can regulate, as the Court held last term when it affirmed Tennessee’s gender-affirming-care ban. While quizzing Campbell, Justice Jackson asked “it’s just a little puzzling to me that she would stand in a different position than a medical professional who has exactly the same goals, exactly the same interests, and would be prescribing medication for that rather than talking to the client.” Cambell, however, argued that Chiles is engaging only in a “back-and-forth, one-on-one conversation [that] is a form of speech.” Talk therapy is speech, therefore, protected by the First Amendment. The medical interventions outlawed by Tennessee—puberty delaying medications, hormone replacement, and gender-affirming surgeries—are conducted. As such, Campbell argued that they do not fall within the First Amendment’s protections, while Chiles’s therapy does. 

If considered as pure speech, a ban on Chiles’s therapeutic methods would infringe on her fundamental rights and require review under strict scrutiny. Under this standard, Chiles argues, the state would need to demonstrate how talk-focused conversion therapy harms minors sufficiently to justify an otherwise unconstitutional restriction of free speech and exercise rights. According to this standard, Chiles contends that the statute would almost certainly fail. While they may have evidence that conversion therapy in general creates risks for young patients, as Chiles states, there is little empirical proof that talk-focused therapy, like the one she provides, causes any risks. An amicus brief from a professional organization supports the state’s position. It cites examples of dangers linked to different forms of conversion therapy, mainly because these therapies portray LGBTQ identities as abnormal.  

Standard of Care 

Oral arguments raised questions about the evidence that future courts might require as they are asked to review medical care. Colorado’s attorneys argued that the law follows “standard of care”—a legal term referring to the level of practice by professional practitioners–in the treatment of young people struggling with sexual and gender identity. Deviations from “standard of care,” argued the state, can be regulated or barred through legislation as a matter of ordinary state protections.  

Conservative justices argued differently. Justice Amy Coney Barrett questioned the meaning of “standard of care” when experts offered “competing strands” or when states disagree. Do states just “pick a side?” she asked. Justice Samuel Alito wondered what the role of the Court should be in accepting medical expertise, “when the medical consensus has been politicized” or “taken over by ideology.” These inquiries raise questions about the capacity for future Court cases to disregard “standard of care” and medical consensus.  

Justices on both sides of the ideological divide seemed to agree that a state cannot target therapists like Chiles who provide voluntary treatment to patients explicitly seeking to resist same-sex sexual attraction or to accept their gender dysphoria by embracing their birth-assigned gender. Justices Elena Kagan and Alito both contended that (as Kagan explained) “if a doctor says ‘I know you identify as gay and I’m going to help you accept that’, and another says ‘I know you identify as gay and I’m going to help you change that,’ and one of those is permissible and the other is not, that seems like viewpoint discrimination.”  

Interestingly, Chiles’s attorneys agreed that the argument would hold on “the flip side”—in cases where a state may want to ban gender- or sexuality-affirming care that is talk-based. Implying that, if Colorado’s law is determined unconstitutional in its application to talk therapy, conservatives may not be able to outlaw professional speech that affirms gender identity or sexuality—in the context of treatment and beyond. 

This raises questions—especially as conservative lawmakers, including President Donald Trump, seek to punish individuals for engaging in speech that criticizes ICE or Charlie Kirk, or promotes “woke” pedagogies. If Chiles wins, how will that precedent apply to LGBTQ-affirming or other targeted speech?  

The post The Gay Conversion Therapy Case and Its Discontents  appeared first on Washington Monthly.

We’re in danger. The partisan Supreme Court is our only real check on Donald Trump, and it has completely abdicated its duty. 

Forget about prominent Republicans like George W. Bush or Mitch McConnell. Their virtual silence on the president’s repeated violation of norms and his undeviated pattern of executive overreach speaks volumes that they will do nothing.

Forget about the Democrats. They can’t decide whether to embrace or marginalize Zohran Mamdani.

Forget about Congress. Conservative Republican senators, led by Barry Goldwater, may have been a band of brothers forcing Richard Nixon out of office in 1974. But it’s no coincidence that Profiles in Courage is such a thin book. In today’s spiteful political climate, brave Republicans like Goldwater are gone, and those in Congress are too cowardly to oppose presidential overreach.

And forget about the MAGA-dominated Supreme Court, of course. Repeatedly, district and appeals court judges have shown courage, blocking Trump’s dangerous and unprecedented policies, only for the Supreme Court to overturn them with a summary order on its emergency shadow docket. Since his return to office, Trump has won nearly all the Supreme Court’s rulings on the shadow docket.

The decisions made on the shadow docket have real-world consequences. For now, Trump can withhold certain congressionally approved funds, discharge transgender service members from the military, send undocumented immigrants to dangerous locations like South Sudan, use race as a factor in immigration stops (but not college admissions), fire thousands of government employees, and all of this is enabled because of emergency orders.

But the big development occurred last week with the astonishing New York Times survey of dozens of federal judges, many of whom were sharply critical of the Supreme Court’s handling of emergency applications, especially in Trump-related cases. You heard it, not from liberal pundits or liberal professors, but from federal judges—some even Trump-appointed—who believe the Supreme Court has gone too far. These sitting judges with life tenure warn of a “judicial crisis,” caused by a spate of opaque orders without opinions in cases related to the Trump administration. The orders have left them bewildered about how to proceed.

Sixty-five judges responded to a Times questionnaire sent to hundreds of federal judges nationwide. Of those, 47 said the Supreme Court had been mishandling its shadow docket since Trump returned to office. The judges were nominated by both Democratic (37) and Republican (28) presidents.

Forty-two judges went as far as to say that the Supreme Court’s emergency orders caused “some” or “major” harm to the public’s perception of the judiciary. Among those who responded, nearly half of the judges nominated by Republican presidents believed the orders had hurt public respect for the judiciary.

The judges delivered a strong rebuke as they shared their concerns about threats to the courts’ legitimacy with the Times. Quoting the Times story, the judges described the Supreme Court’s shadow docket orders as “mystical,” “overly blunt,” “incredibly demoralizing and troubling,” and “a slap in the face to the district courts.” One judge compared their district’s current relationship with the Supreme Court to “a war zone.” Another said the courts are in a “judicial crisis.”

The survey apparently galled the Supreme Court’s right-wing defenders, who have rubbished the survey’s methodology and denigrated the participating judges as engaging in unethical—if not impeachable—misconduct. 

For its part, the Supreme Court’s liberal wing has deemed the majority’s pro-Trump rulings to be “misguided,” “dangerous,” and an “existential threat to the rule of law,” as well as “overly blunt,” “incredibly demoralizing and troubling,” and “a slap in the face to the district courts.” Chief Justice John Roberts had previously chastised the liberal wing of the court in July 2023: “It has become a disturbing feature of some recent opinions to criticize the decision with which they disagree as going beyond the proper role of the judiciary.” Oh, please!

Federal district court judges must be commended for their independence in an age of craven politicians. There have been roughly 300 cases aimed at stopping executive overreach, and the litigation has slowed Trump down. The main pattern is that lower federal courts often rule against the administration, with many judges being appointees whom Trump chose, and the Supreme Court frequently reverses these decisions quickly on its shadow docket without giving a full opinion. So far, there have been only three major majority opinions regarding the Trump administration’s requests for emergency relief—along with 10 rulings that did not explain at all (the rest have involved brief explanations that the Court itself calls “orders,” rather than “opinions of the Court”).

Federal district judges play essential roles in our society. Their positions are not mere stepping stones to appeals courts or the Supremes. Most stay their entire career or leave for something else entirely. District Judge George Mitchell, the Senate Majority Leader, was tapped for the U.S. Senate when his fellow Mainer, Senator Edmund Muskie, became Jimmy Carter’s second Secretary of State. But some MAGA justices have sternly rebuked lower court judges in language more appropriate for a scolding schoolmarm. In August, Justices Neil Gorsuch and Brett Kavanaugh reprimanded seasoned Judge William G. Young of the U.S. District Court for the District of Massachusetts. Young, an 85-year-old appointee of President Ronald Reagan and an Army veteran who has served for over 40 years on the bench, was criticized for what they saw as the mortal sin of applying an emergency ruling in one spending case to another. “Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them,” they wrote.

That view resonated with one of their retired colleagues, Jeremy Fogel, a federal judge for 20 years. Judge Young, he said, “has been at it for so long. He’s done the toughest cases, and he’s done them well. For a guy like that to get bench-slapped for not reading the tea leaves properly? That’s just not fair.”

And one district judge found himself vulnerable to Trumpworld retaliation. For stopping Trump from using the Alien Enemies Act of 1798 to deport alleged gang members, he was criticized as a “troublemaker” and an “agitator.”

When Trump said he wanted the jurist impeached, and a bill of impeachment was introduced in Congress against the judge, this piece of Trumpery was too much even for Chief Justice Roberts. Without daring to mention Trump by name, Roberts thundered, “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision.” 

At a September hearing, Judge James A. Wynn Jr. of the U.S. Court of Appeals for the Fourth Circuit said his court was “out here flailing” as it tried to apply vague emergency rulings from the Supreme Court that left judges “in limbo.” Ruling on a different case, Judge Allison D. Burroughs of the U.S. District Court for the District of Massachusetts noted that the emergency orders “have not been models of clarity.”

It is “of surpassing historic significance” that so many sitting judges have chosen to weigh in publicly on the Supreme Court, said J. Michael Luttig, a conservative former federal judge who served in the administration of George H.W. Bush.

Trump’s allies argue without cogency that lower court judges overstepped their authority in blocking presidential actions, interfering with what they call a popular mandate. One judge, a Trump appointee, shared that view and praised the Supreme Court for “flushing out anti-democratic rulings” with its emergency orders.

Most judges’ main complaint was not what the Supreme Court decided but how it did so. They said the Court was leaving them without standards or guidelines by issuing shadow docket orders in just a few sentences, with little or no reasoning.

Despite the justices’ brevity and lack of reasoning, the Supreme Court has become more persistent in asserting that its emergency orders serve as precedents for lower courts. In an unsigned emergency order from July, the Supreme Court noted that although emergency orders were “not conclusive,” district court judges should still consider them in “like cases,” which is the exact opposite of what Justice Samuel Alito publicly stated as recently as September 2021.

Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit, a highly regarded jurist and Reagan appointee, was less certain. Wilkinson mentioned that the Supreme Court was prim at the mercy of factors beyond its control: a high volume of urgent challenges to a presidency that “would put its foot on the pedal, because it has an agenda, and it’s sensitive to the fact that electoral mandates are perishable.”

Supreme Court scholar and law professor Stephen Vladeck makes a strong point, which is how much the defenses of the Court’s recent behavior in Trump-related cases rely on some combination of these kinds of attacks on the critics and the knocking down of straw men (like in Justice Amy Coney Barrett’s appearance the other day on Fox News Sunday). He indicates that those who don’t see anything concerning in the Court’s behavior “would do well to actually respond to the criticisms rather than attacking the critics or caricaturing their concerns.” 

Justice Barrett, specifically, when asked to respond to criticisms of the Court’s handling of Trump-related emergency applications, gave the misleading answer that “If we wrote a long opinion, it might give the impression that we have finally resolved the issue, and in none of these cases have we finally resolved the issue.”

Vladeck argues that the Court can easily craft an opinion that doesn’t predetermine any future outcome if the case returns on the merits. It can clearly state that it isn’t definitively ruling on the merits—something it often emphasizes in non-Trump cases. Lawyers refer to this as a disclaimer or a caveat.

Maybe in the land of Oz, one can justify the Court granting emergency relief more frequently than ever, especially in cases with greater real-world and structural impacts. However, it is hardly justifiable for the Court to break the traditional balance of equities to serve partisan interests, as they did in December 2000 when their 5-4 decision to halt the Florida recount handed the election to George W. Bush. Curiously, does the Court go that way only in cases where Trump is a party and no others? 

The recent fast-track shadow rulings by the Supreme Court have completely undermined its credibility. Does a self-styled institutionalist like Chief Justice Roberts care? The American people do.

The post Federal Judges Are Worried About the Supreme Court appeared first on Washington Monthly.

As the Supreme Court begins its new term this first Monday in October, it’s worth noting that an important anniversary went largely unnoticed on September 29. It was the 20th anniversary of John Roberts being sworn in as chief justice of the United States and the beginning of the Roberts Court. There have been only 17 chief justices—some very memorable, like John Marshall, and others far less beneficial, like Roger Taney, author of the Dred Scott decision, which held that Black people were not citizens, making March 6, 1857, the darkest day in the Court’s history.

Roberts’s appointment came during George W. Bush’s annus horribilis—a year after the president’s 2004 reelection, when his administration mishandled Hurricane Katrina, watched its invasion of Iraq unravel, and made an ill-fated run at partially privatizing Social Security. Roberts was initially tapped to replace Justice Sandra Day O’Connor, who had announced her pending retirement on July 1, 2005. However, when Chief Justice William Rehnquist died in September 2005, Bush only waited two days to tap Roberts for the Chief’s seat and his White House Counsel, Harriet Miers, for the O’Connor vacancy. In case you’ve forgotten or are too young to remember, Miers withdrew after conservatives decried her lack of experience and worried about her right-wing bona fides. Bush got the message, dispensed with appointing another woman (or cipher) to the Court, and named a right-wing favorite, Samuel Alito of the Second Circuit, to fill the associate justice’s seat.

Twenty years into the Roberts Court, the Court’s public approval is close to its lowest since such measures began.

During Roberts’s tenure, the law has shifted significantly toward fulfilling many of the conservative legal movement’s main priorities, such as the doctrine of the “unitary executive,” which it has nearly fully embraced. This weakens the separation of powers that has served as a check and balance against a “man on horseback” for over 230 years. The largest number of Americans ever surveyed says the Court is now too conservative. Iconic liberal Justices Oliver Wendell Holmes, Louis Brandeis, Hugo Black, William O. Douglas, Earl Warren, and William Brennan must all be turning over in their graves. Justices who favored a humble, modest court that deferred to legislatures wherever possible, such as Felix Frankfurter, must also be spinning.

Now, the Roberts court may be tilting even further to the right. The doctrine of stare decisis has always been the keystone of our common law, which we inherited from England. Stare decisis means that courts must stand by what they decide. The doctrine ensures consistency and predictability in the law.

The late Justice Antonin Scalia recognized stare decisis as a guiding principle. Famously describing himself as a “faint-hearted originalist” who would abandon the historical meaning of the Constitution when following it was intolerable, he proclaimed that “stare decisis is not part of my originalist philosophy; it is a pragmatic exception to it.”

Stare decisis is sensible because, among other reasons, it protects those who have organized their affairs based on a court’s existing rulings. Why make a will or cut a business agreement unless you are confident the courts will enforce its provisions? Why marry someone of the same sex if you believe the Court’s decision that such a marriage is constitutionally guaranteed is vulnerable to being scuttled just a few years later? 

Justice Clarence Thomas questions the strong foundation of stare decisis. Days before the Court’s term begins, Thomas told a Catholic University audience that he feels no duty to follow “totally stupid precedent if I find it doesn’t make any sense.” How does he determine what is “totally stupid,” the text, the original understanding, or just his gut feeling? 

Thomas continued his harangue, “I think we should demand that, no matter what the case is, that it has more than just a simple theoretical basis,” Thomas said. If it’s “totally stupid, and that’s what they’ve decided, you don’t go along with it just because it’s decided.”

He added: “I don’t think that … any of these cases that have been decided are the gospel,” Thomas said during the rare public appearance. “And I do give perspective to the precedent. But … the precedent should be respectful of our legal tradition, and our country and our laws, and be based on something, not just something somebody dreamt up, and others went along with.”

Settled legal precedent in the U.S. is not “gospel” and, in some instances, may have been “something somebody dreamt up and others went along with,” but stare decisis is a venerable principle of the common law, and judges since Magna Carta in 1215 have venerated the doctrine. It doesn’t mean every precedent stands forever. Still, when the Court overturns one, as it did in 1954’s Brown v. Board of Education, overturning racial segregation in public schools, it does so sparingly. It begins to signal its objections in prior cases. Brown was preceded by other cases overturning racial discrimination, such as Texas’s all-white Democratic primary.

Thomas’s remarks are especially troubling now that the Court is considering a request to overturn the 2015 Obergefell Supreme Court decision that guaranteed marriage rights for same-sex couples, along with issues like birthright citizenship, the independence of regulatory agencies—which have been part of our government since the late 19th century—presidentially imposed tariffs, transgender rights, voting rights, campaign finance law, religious rights, and capital punishment.

Given Roberts’s record and Thomas’s remarks, there’s reason to fear stare decisis is disappearing. It didn’t stop the Court from overturning Roe v. Wade and decades of case law on regulation. Just last week, the Court ignored stare decisis, almost overruling the 1935 case Humphrey’s Executor by allowing Trump to remove, at least temporarily, a commissioner on the Federal Trade Commission—the same agency involved in that New Deal-era decision.

Humphrey’s Executor involved President Herbert Hoover’s nomination of Humphrey as an FTC commissioner, which the Senate confirmed. In 1933, President Franklin D. Roosevelt requested Humphrey’s resignation. When Humphrey refused, Roosevelt fired him despite the FTC Act stating that a president could only remove a commissioner for “inefficiency, neglect of duty, or malfeasance in office,” none of which applied to Humphrey. The unanimous Court ruled that the FTC Act was constitutional and that Humphrey’s dismissal on policy grounds was unjustified. The Court reasoned that the Constitution has never granted the “illimitable power of removal” to the president. Unless, as this Roberts Court interprets it, the Constitution gives the president that power when their name is Trump.

This week, the Court allowed Federal Reserve Governor Lisa Cook to keep her seat temporarily while Trump attempts to fire her. It will review the utterly concocted case against her, which is notable since just weeks earlier, the Court emphasized that members of the central bank deserve greater protection from removal than, for example, members of the National Labor Relations Board. No wonder virtually every living Federal Reserve chair and Treasury Secretary has begged the Court in an amicus brief not to permit the president to fire a Fed governor over an unproven charge of mortgage fraud. (Speaking of amicus briefs, it’s shocking and little noticed that in her new book, Listening to the Law, Justice Amy Coney Barrett states she generally does not read amicus briefs because they focus on policy issues rather than purely on the law. More on that in a minute.)

In 2013, the Roberts Court didn’t strike down the Voting Rights Act, but just a few years after Congress nearly unanimously renewed some of the statute’s temporary provisions, and President George W. Bush signed it in 2006, in Shelby County v. Holder, it neutered the law’s preclearance provisions. John Roberts wrote the opinion.

These provisions require states with a history of voting rights abuses to obtain federal permission from the Justice Department or the D.C. Circuit Court of Appeals before changing their voting practices, such as redrawing district lines or relocating polling stations. Roberts wrote the decision invalidating decades-old precedent; he allowed the Section 5 preclearance tool to survive (I bet at the insistence of the Court’s moderate swing vote, Justice Anthony Kennedy) but struck down the Section 4 standards that governed where Section 5 could be used. Congress and the president had frequently updated those standards over the decades to keep pace with changing conditions so states could get out of the penalty box. No matter. The Roberts Court substituted its judgment for that of multiple Congresses and presidents.

Now the Court seems ready to go after Section 2 of the Voting Rights Act, a permanent nationwide provision of the 1965 statute that bars electoral practices with a discriminatory “effect.” The Rehnquist Court upheld the discriminatory effect standard that Congress wrote into Section 2 in 1982, and that President Ronald Reagan signed. The Roberts Court seems eager to strike it down 43 years later.

Sustaining the Voting Rights Act is the acknowledgement that if states violate the Constitution when they draw congressional district lines to dilute minority (and especially Black) votes, then it ought to follow that Congress can enforce the Constitution by requiring states to draw districts that don’t so discriminate—even if that requires states to consider race when doing so. Otherwise, this critical constitutional principle would be a dead letter. But the justices may further trash the statute Roberts gutted in Shelby and decide otherwise.

In 2005, when Roberts, then a jurist on the D.C. Circuit, faced confirmation hearings to become chief justice, he likened his judicial role to a baseball umpire. “It’s my job to call balls and strikes,” he famously said, an aw-shucks response meant to prove that he would be a humble chief justice. Since he’d spent most of his career as a litigator instead of an ivory tower jurist, this seemed plausible.

Roberts won plaudits as an institutionalist when he was the deciding vote upholding the Affordable Care Act in 2012. Still, he has often shown himself as a hard-right justice in institutional drag. He voted to uphold a Mississippi law banning abortion, although he refrained from the coup de grâce, and did not join Alito’s gleeful opinion eviscerating of Roe v. Wade, a super precedent for almost half a century. His Court, with his complete agreement, dismantled the “Chevron deference” in regulatory cases, a 1984 doctrine established and supported by Republican-appointed justices to emphasize that regulations created under President Reagan couldn’t be easily overturned. He sided with his Court’s conservative wing to consider numerous cases on the shadow docket and has voted to vacate injunctions to allow illegal conduct to continue. As cases wind their way to a conclusion, he has also voted to decide cases on an interim basis—even when he didn’t need to—and, under the guise of issuing temporary orders, has often resolved weighty legal issues at earlier stages of litigation. So, regardless of your opinion of Roberts, don’t naively label him as an institutionalist. 

Most importantly, Roberts has blessed the expansion of presidential powers to the point where even if the chief executive ordered Seal Team Six to murder his opponents, in the words of one appellate judge, it would not expose the president to any charges, even after leaving office. Hence, Trump’s myriad felony convictions and federal prosecutions became one big nothingburger.

With Thomas ignoring the precedents and Barrett saying she doesn’t read most amicus briefs because they address policy issues rather than the law, we have at least two justices, influenced by a conservative ideology, who will focus on legal principles of their own choosing. I doubt they’re alone.

If this is so in this era of artificial intelligence, why do we need judges? I always thought that law was policy by another name or a close cousin. Freedom of the press and freedom of religion are fundamental rights. They are also policies. If a justice wants to ignore the gravity of amicus briefs, that’s just weird. So, we have a supermajority that includes precedent and policy ignorers. Now that the Court has abolished constitutional protections for abortion, eviscerated a significant provision of the Voting Rights Act and has its eyes set on another, expanded executive power to kingly proportions, and greenlit big money in politics, it’s hard to imagine what they won’t do to precedents Thomas has hinted strongly that he wants to overrule such as New York Times v. Sullivan, which affords the press protection from libel actions filed by public figures. If all they are doing is calling balls and strikes (and I mightily dispute this), we might as well abolish the judiciary and replace it with an AI ball-strike challenge, which might be preferable to what we have under Chief Justice Roberts.

The post The Roberts Court at 20 appeared first on Washington Monthly.

The headline from the Supreme Court the other day was its interim shadow docket decision regarding President Donald Trump’s cancellation of $783 million for scientific research at the National Institutes of Health (NIH). Through an executive order, he issued “guidance” on how NIH grants are to be administered by the agency, including that it will not fund scientific research related to diversity, equity, and inclusion (DEI). Moving forward, the agency would not fund gender identity or COVID-19 or award grants based on race either. 

The short, unsigned order on the Supreme Court’s so-called shadow docket, which modified a stay of Trump’s order issued by a Massachusetts federal court, was all over the place. Eight justices, except Amy Coney Barrett, dissented from part of the ruling. The 5-4 split decision had no majority opinion and just a single, sparse paragraph. 

The issue in the case was bifurcated. The first branch invalidated the governing guidance Trump relied on to stop paying the challenged grants, while the second ordered the government to pay the funds. Four Republican-nominated justices (Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh) voted to reverse entirely. Four other justices (John Roberts, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson) voted to affirm the lower court’s decision. Barrett straddled the fence—staying the repayment order (because she thought relief must come from the Court of Federal Claims, not the federal district court), but leaving the guidance vacated. It is risible how the NIH can block grant funding when the guidance for stopping the funding has been enjoined.  

Curiously, Chief Justice John Roberts, who has evinced an outsized deference to the president, went wobbly. Joining the liberals’ dissent, he noted the government had conceded that the district court’s two remedies are “inseparable.” Roberts concluded that, in such circumstances, the district court was not “required . . . to split [the Siamese twins] into two parts.”  

Even though litigation over NIH grant payments will likely proceed in the Court of Claims, the administration can, at least for the time being, withhold NIH funding for research it deems woke. The Court’s illogic boggles the mind. How can they plausibly hold that in a case where, after a hearing, the lower court has decided that the government’s conduct is probably illegal, and then allow the illegality to continue indefinitely while they consider the matter? 

In a dissent, Justice Jackson pointed out the politics behind the legal reasoning: 

For a cautionary tale about lawmaking on the emergency docket, look no further than this newest iteration. By today’s order, an evenly divided Court neuters judicial review of grant terminations by sending plaintiffs on a likely futile, multivenue quest for complete relief. Neither party to the case suggested this convoluted procedural outcome, and no prior court has held that the law requires it.  

Jackson labeled the NIH case the “newest entry in the Court’s quest to make way for the Executive Branch” and one that “has real consequences, for the law and for the public.”  

Barrett’s opinion aligned with the Court’s birthright citizenship ruling, making aggrieved parties scurry to seek redress from multiple federal courts. She would require recipients whose grants had been blocked to file a claim in one court for their claim that Trump had acted illegally, and in another to recover their money. Barrett’s approach hardly serves the law, science, or the American people. Even the Trump administration argued to the Court that the two issues were “inseparable.”  

Barrett claimed a prior shadow docket opinion blessed her approach. But that decision is against her. In the earlier case, involving education-related grants, the Court observed that the government’s waiver of sovereign immunity does not necessarily apply to a claim for money damages, recognizing that while a district court’s jurisdiction “is not barred by the possibility” that an order setting aside an agency’s action may result in the disbursement of funds. This was Roberts’s point in his separate opinion, joined by the three liberal justices. 

With Justice Barrett teetering, the 5-4 majority blocked a district court ruling that initially ordered the NIH to fund the grants. Another 5-4 majority kept intact the part of the district court’s ruling that had blocked the specific government guidance justifying the grant cutoffs—the first minor setback for Trump (if it can be seen as such) on a shadow docket application since April. 

In her dissent, Jackson wrote that the Supreme Court has entered a judicial era of Calvinball. Her reference was to the comic Calvin and Hobbes, where the characters played a fictional game called “Calvinball,” in which the rules constantly change.  

The only fixed rule in Calvinball is that you can’t play it the same way twice.  

Jackson argued that her colleagues in the majority adopted this distorted, special rule solely because of the applicant’s identity: “This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one [there are no fixed rules], and [the other] this Administration always wins.” 

In casinos, the house always has an advantage, and it doesn’t need to explain why. On the Supreme Court shadow docket, it’s not entirely different—heads, Trump wins; tails, the people lose. And there’s no need to explain why. It should not be surprising that the Court would act this way regarding health research. The only cold comfort is that the Chief Justice might be starting to realize that the game has been rigged against the welfare of Americans.  

The post In NIH Funding Case, the Supreme Court Makes Up the Rules as It Goes Along  appeared first on Washington Monthly.

In the case of Trump v. Casa, Inc., John Sauer, Trump’s former criminal lawyer and now Solicitor General, convinced the Supreme Court to uncouple the substantive right of birthright citizenship from the nationwide injunction necessary to vindicate the constitutional principle. Unable to deny, as much as some of the justices may have wanted to, the stern and familiar constitutional command that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” Sauer’s fancy footwork prevailed and got the Supreme Court supermajority, led by Amy Coney Barret, to allow that the right might be remedied by a party to the lawsuit, but no one else.

The controversy arose because Trump’s Executive Order No. 14160, Protecting the Meaning and Value of American Citizenship, identifies circumstances in which a person born in the United States is not recognized as an American citizen. Six lower federal courts held that the Executive Order was probably unconstitutional. How could they do otherwise?

The order, one of 143 Trump signed in the first 100 days of his second term in office (in the same period Trump 1.0, signed only 28 orders; Biden, 23; Obama, eight, and George W. Bush, 11), rubbishes not only the Constitution but also a statute of Congress, the acquiescence of presidents going back to Lincoln, and legal precedents that have upheld the right every time the issue has been presented.

The Supreme Court’s supermajority sits like six North Korean generals guarding Dear Leader. It has expanded the president’s criminal immunity to an alarming degree, thus enabling a second term and now allowing our own Dear Leader to scuttle a Constitutional mainstay.

The Court often, with some derisiveness, refers to the other co-equal branches of government as the “political branches.” This is because it is supposed to be aloof from politics. But their recent opinions and orders make the conclusion inescapable that they are divided as any legislature. They are politicians in robes talking past one another with no commitment to compromise. If you are ready for some real bile, read Justice Barrett’s scolding of Justice Ketanji Brown Jackson for abandoning her “oath to follow the law.” “Justice Jackson would do well to heed her own admonition,” she chided: ‘[E]veryone from the President on down, is bound by law.’ That goes for judges, too.” Or: “Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”

Jackson never embraced an “imperial Judiciary.” She did not suggest that judges are above the executive or the law. Justice Jackson argued that the executive is not above the law. It is not that one branch has supremacy over the other. The law has supremacy overall, and it is for the judicial branch to tell us what the law is. The other branches must adhere to its judgments.

In the case of birthright citizenship, it is rare that a provision of the Constitution is so explicit and requires so little judicial artistry in its interpretation. A mainstream textualist would conclude it says what it means and means what it says. Barrett never argued with this because she couldn’t, which is why Solicitor General Sauer chose to sever the issue of trial court remedy from this long-established right. Indeed, Barrett’s opinion explicitly states: “The principal dissent’s analysis of the Executive Order is premature because the birthright citizenship issue is not before us.” And it may never be because the government will inevitably lose in the piecemeal litigation that the Court has spawned and never appeal again to the Supreme Court for a definitive ruling. The plaintiffs in the individual cases won’t appeal. Usually, you don’t appeal when you have won.

The Court neutered the nationwide injunction; a remedy it had ample opportunity to tinker with during the Obama and Biden administrations, but declined to do so. In short, mifepristone, yes, gives them a nationwide injunction, and birthright citizenship is probably a right, but there is no remedy. Instead, as Garrett Epps put it in his brilliant Washington Monthly piece on this case: “The Court picked the worst possible case to consider that question dispassionately. Not only is the executive order itself grotesquely lawless, but the application of the Trump rule threatens administrative chaos as low-level officials puzzle over Trump’s cryptic wording and try to apply it to babies with valid birth certificates but whose parents may be here on student visas.” Please read Amy Coney Barrett and the Supreme Court Give Birth to a Disaster.

The equitable principle that what is “sauce for the goose is sauce for the gander” evidently has no place before this court. When I went to law school, we were taught a legal maxim at the core of our system. It is: “Where there is a right, there is a remedy” (ubi jus ibi remedium), meaning that if someone has a legally recognized right, the law should provide a way to enforce that right when violated.

The court made its heartless ruling in the birthright case on its infamous shadow docket, rendering it more challenging for hundreds of thousands of citizen plaintiffs who might be deported before they had a chance to get a lawyer to vindicate their rights. Barrett’s 6-3 opinion seriously diluted the right to justice by leaving without a remedy hundreds of thousands of natural-born infants out there whose parents were here illegally.

Trump lauded his “Big Win.” No wonder he thanked Chief Justice John Roberts at the State of the Union address, presumably not for Roberts’s chancellorship of the Smithsonian Institution.

Injustice pervades the shadow docket cases. Even though there is rarely an “emergency,” the Court cannot indulge itself in taking the time to put Trump cases on the merits docket where there would be a full briefing, oral argument, and careful deliberation. Trump’s cases get lightning-fast. shadow-docket treatment with interim orders, which in many cases become permanent. It rarely issues opinions in shadow docket cases. We know the outcome, not the reasoning. In short, bargain-basement justice. And they wonder why there is diminished respect for the institution.

In the just-ended October 2024 term, the Court considered 20 of Trump’s executive orders on the shadow docket and handed him victories in all but two: one involving the use of the Alien Enemies Act to deport Venezuelan men without due process, where they remanded the case to a lower court for further proceedings, and another involving the payment of $2 billion in foreign aid reimbursements for contracts and grants.

In almost all shadow docket cases, the Court’s interim order is sans opinion. In some cases, we don’t know which justices voted for the result and which didn’t. It’s as if, when it comes to a Trump executive order, the justices resemble masked ICE agents accomplishing an arrest anonymously.

The Constitution and Congress limit the executive power to exert physical force that directly threatens to deprive people of life, liberty, or property. I recently moderated a panel, “Guardrails on Democracy,” sponsored by the Hamptons Institute and the Common Good. The event was a sellout, with 300 people in attendance. The panelists, including the legal analyst Norm Eisen, bemoaned the increasingly porous restrictions on executive authority. Rome was not built in a day, nor is an autocratic state. We are headed for an era of arbitrary power, which the Supreme Court enables. As T.S. Eliot wrote: “Between the essence and the descent, Falls the Shadow.”

The post Supreme Court Fallout: The Birthright Citizenship Case and Autocracy appeared first on Washington Monthly.

Begin by looking at the stakes in Trump v. Casa, the “nationwide injunction” case decided Friday, as laid out in oral argument by Donald Trump’s administration. In his argument before the justices last May, Solicitor General D. John Sauer made clear that the administration doesn’t want to follow the orders of District Courts and doesn’t think it should have to; that it may be willing to follow the decisions of the Courts of Appeals depending on whether it likes them; and that it will probably usually follow the decisions of the Supreme Court, but only as to the specific parties that bring the cases.  

Everybody else can line up at the courthouse, take a number, and wait for their chance to prove that federal courts still have the power to enforce the law.  

One at a time, please. 

In practical terms, this atomized view of justice means that a vast swath of what we used to call “the rule of law” lies before us in the look of the doomed often assumed by Wile E. Coyote in the Road Runner cartoons after his own boulder crushes him.  

The issue in CASA  (a national immigrants-rights group, which was joined by individuals and states) was whether District Courts had the authority to block Trump’s Executive Order that purports to sweep aside the Constitution’s rule that “all persons, born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Trump’s bizarre order set aside the 14^th Amendment’s text, a century of Supreme Court precedent, and the provisions of the federal Immigration and Nationality Act and substituted an ungainly new text that revoked the promise of citizenship to American-born children of immigrants, not only undocumented ones, but of many fully legal immigrants as well.  

No one has given a satisfactory answer to where this rule, not only arbitrary but weirdly specific rule came from. The order does not even bother to claim that it is the “original public meaning” of the Amendment—since, of course, the very establishment of the “originalist” movement has long concluded that the 14th Amendment means what it says—that it covers every American-born child except the children of foreign diplomats exempted from “the jurisdiction” of the United States by diplomatic immunity.  

The order essentially insists that Trump thought this would be a better deal and that, starting in 30 days, the executive branch would strip newborns of their constitutionally guaranteed status. As for the rest of us, it might be a good idea to find your birth certificate and those of your parents. 

Three federal district courts concluded that the birthright citizenship order is almost certainly unconstitutional and barred the executive branch from enforcing it pending a final decision. The issue seemed headed to the Supreme Court, where it would be decided in the normal course of American law. 

The administration, however, did an end run around that process. It filed an application with the Supreme Court that denied any interest in the issue of the order’s constitutionality. Instead, it said, it wanted the Court to look at whether district courts can tell the president he can’t do something he wants to do—to issue “universal injunctions” barring the government from, for example, stripping citizenship from any baby until the constitutionality of the order can be settled. The two things, the government suggested, have nothing to do with each other.  

“If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to,” the famed legal scholar Thomas Reed Powell once wrote, “then you have a legal mind.” And of course, the six conservative justices of the Court’s supermajority have the finest, most  of minds, so certified by their clerkships, law review publications, and the high esteem in which the Federalist Society holds them.And so the Court, in an opinion by Justice Amy Coney Barrett, recently lauded and pilloried as moving to the left, weighs limiting federal courts’ power to block unconstitutional executive policies without involving the messy business of the Constitution.  

To answer this question, the majority pursues what Justice Ketanji Brown Jackson calls, in a solo dissent, “a mind-numbingly technical query: Are universal injunctions ‘sufficiently analogous’ to the relief issued ‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the of the original Judiciary Act’ to fall within the equitable authority Congress granted federal courts in the Judiciary Act of 1789?” She rephrases the question as is in fact, “a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?” 

To which the majority answers, not so much. They argue that because of the themes it claims to find in the history of the British Court of Chancery, a federal court only has the authority to bind the parties before it. Everybody else has to get a lawyer and enforce the Constitution in a separate action. The executive will follow the law only as to those parties. As we say in the street, the rest of us are SOL (Shit Out of Luck).  

Justice Sonia Sotomayor responded to Barrett’s opinion in a dissent joined by Justices Jackson and Elena Kagan. The order is, without a doubt, probably the most unconstitutional thing the executive branch has tried since the internment of Japanese Americans. As noted above, every source of law in the American system—constitutional text and history, judicial interpretation, statutory enactment, and executive interpretation—flatly contradicts the idea that the bizarre categories in the order are anything but a gross violation of one of the centerpieces of the constitutional order, of its promises of equality and due process of law. By permitting the government to argue against the lower court orders without considering the legality of the order itself, the majority establishes a presumption that presidents can do anything they want, legality be damned, unless specific parties can get orders that protect themselves. “No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship,” writes Sotomayor. “Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship.”  

As a legal scholar, my usual role is to say on the one hand, on the other hand, and reasonable minds may differ, and so forth. It has been a long day (opinions come down at 7 a.m. in the Pacific Time Zone where I live), and I may play my part with ill grace. Of course, there are questions about the growing number of “universal injunctions” out of the lower federal courts in the past 25 years—orders that, for example, held up Trump’s “travel bans” in his first term, and blocked Joe Biden’s student-loan-forgiveness program during his term in office. The practice leads to “forum shopping,” where groups select a favorable judge. It can seem like the assumption by lower court judges of a policy-making role is incompatible with the judicial function.  

But by allowing an attack on these particular injunctions—on orders that block the executive from changing the Constitution itself—the Court picked the worst possible case to consider that question dispassionately. Not only is the executive order itself grotesquely lawless, but the application of the Trump rule threatens administrative chaos, as low-level officials puzzle over Trump’s cryptic wording and try to apply it to babies with valid birth certificates but whose parents may be here on student visas. States, too, will face upheaval in their administration of federal programs—many of which provide funding only to American citizen children in hospitals and schools.  

And there’s no argument that the Trump birthright citizenship rule is a good-faith interpretation of the law. It’s a power grab—the kind that distinguishes dictatorship from democracy. One prerogative of the state in Soviet Russia, fascist Italy, and Nazi Germany was to strip disfavored people and groups of citizenship and single them out for disfavored treatment and even liquidation. It is the last measure that should be afforded, a “presumption of regularity.” 

But wait! You can still avoid unconstitutional orders by hiring your own lawyer! As Jackson says in her dissent, the decision creates “two different zones moving forward: one in which it is required to follow the law (because a particular plaintiff has secured a personal injunction prohibiting its unlawful conduct), and another in which it can choose to violate the law with respect to certain people (those who have yet to sue).”  

That will surely comfort babies born after the 30-day grace period, whose parents may lack private counsel, or may fear claiming their children’s birthright because they may face deportation.  

The majority sent the orders back to the lower courts with instructions to reconsider them in light of the new doctrine. Despite being subject to a kind of nice-court-you-have-shame-if-anything-happens-to-it caution by the majority and by Justice Samuel Alito in his separate opinion, one hopes these judges will not join this despicable executive coup. Some damage can be undone by using Federal Rule of Civil Procedure 23, which permits certification of a large class of plaintiffs if their cases fit together.  

In the meantime, the Court has given the administration 30 days to prepare to enforce the order, for which the Solicitor General confessed the government is completely unready.  

There’s no mistaking, though, that by deferring to this worst of all orders, the Court has signaled to the judiciary that it should get out of Trump’s way.           

Again, I forsake my tut-tut don’t-worry role and say that my concerns echo Jackson’s: “I have no doubt that, if judges must allow the Executive to act unlawfully in some circumstances, as the Court concludes today, executive lawlessness will flourish, and from there, it is not difficult to predict how this all ends. Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.” 

The post Amy Coney Barrett and the Supreme Court Give Birth to a Disaster  appeared first on Washington Monthly.

“It’s the judges, stupid.” That’s all you should remember when Donald Trump says he won’t sign such a national abortion ban and J.D. Vance assures the public that such a ban is an “absurd hypothetical.”

Americans panicked by the thought of a President Trump 2.0 eviscerating what’s left of reproductive freedom are undoubtedly focused on state and local races, given how the 2022 Dobbs decision overturning Roe v Wade gave carte blanche to jurisdictions to regulate and outlaw abortion. But, despite Trump and Vance’s insistence that they’ll entertain no national ban nor even address the constitutional rights the Supreme Court eviscerated and devolved to the states, the two would play a vital role in determining access to abortion—not only through a national abortion ban but also through the judges they nominate. I say “they” because Vance, a Yale Law School graduate obsessed with women’s procreation, will be involved to the hilt.

Trump has rightly claimed—although he must share credit with Mitch McConnell, the Senate Republican leader—that he is responsible for overturning Roe v. Wade by nominating three far-right justices to the Supreme Court. McConnell famously blocked Senate consideration of Judge Merrick Garland, then the much-admired chief judge on the nation’s second-highest court, following the January 2016 death of Justice Antonin Scalia under the guise that it was best left for voters to decide who should appoint the replacement. The Kentuckian’s cynicism and audacity blocked consideration of Garland or any justice for a year, leaving a vacancy for Trump to fill when he took office in 2017. Neil Gorsuch was tapped for the seat. Then McConnell, who will give up his leadership position with the new Congress, helped Trump muscle through two additional nominees, Brett Kavanaugh and, incredibly, Amy Coney Barrett, whose confirmation was rushed through the Senate in 2020 just days before voters went to the polls.

With the Dobbs decision, which found no federal constitutional protection for women’s reproductive rights, the Court’s existing supermajority, at once activist and retrograde, revisited a recent abortion decision and reversed it. In May 2021, even the Trumpified Supreme Court struck down a Louisiana law adding draconian requirements that unduly burdened women’s reproductive rights. Notably, in that case, Chief Justice John Roberts joined with a 5-4 majority, acknowledging that under very recent precedent, the law was unconstitutional. One year later, Roberts shed his faux adherence to stare decisis to reject decades of precedent, with no societal or other change to justify upending settled law. And the justices have been on a tear ever since, shredding case law regarding the government’s power to regulate, granting the president virtually total immunity and upending affirmative action.

But what makes this Court even more dangerous for reproductive rights is the ripple effect. Lower courts will also apply the Supreme Court’s precedent by shattering precedents. Republican politicians will see no reason not to pass ever more draconian restrictions. These restrictions include barring abortions to save a mother’s life or because the pregnancy was due to rape or incest.

As the Dobbs joint dissent asked: “Must a state law allow abortions when necessary to protect a woman’s life and health? And if so, exactly when? How much risk to a woman’s life can a State force her to incur… short of death, how much illness or injury can the State require her to accept consistent with the [Fourteenth] Amendment’s protection of liberty and equality?” How far states can go under the new paradigm is being decided now by state legislatures with the assistance of Trump-blessed federal judges.

Notably, the Supreme Court this past summer decided not to decide whether Idaho’s near-total ban on abortion violated the federal Emergency Medical Treatment and Active Labor Act (EMTALA). This federal statute requires that Medicare-funded hospitals provide abortions when necessary to address a medical condition that seriously threatens a pregnant woman’s life or health. While the Court punted, they seem poised to take it up again later and gut the law.

The courts can go further still to undermine reproductive rights, and in a second Trump term, with the likelihood of a Republican-controlled Senate doing the confirming, they surely will. There’s no need for a national abortion ban if the courts can get there under “constitutional law” and thereby take the decision away from the public. During oral arguments over the Idaho ban earlier this year, Justice Samuel Alito unsurprisingly suggested the direction he would like to go. Quoting the statute’s use of the term “unborn child” and its concern for its “potential interests,” Alito suggested that abortion can never be used under EMTALA to protect a woman because “[i]t seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child but performing abortion is antithetical to that duty.”

Unconcerned that the language was only meant to apply to delivery and labor issues for pregnant women, Alito repeatedly suggested that the statute gave equal weight to both a nonviable fetus and a woman—even when her life was at risk.

Earlier this year, the Court also declined to overturn federal regulations governing the distribution of Mifepristone, ruling that the parties seeking to forbid the so-called abortion drug from being delivered through the mail lacked standing. But again, given the questioning from conservative justices and their failure to enunciate any principle by which any reproductive right could be found in the constitution, the justices could well take another bite at the apple, and that’s assuming a 6-3 conservative majority, not a 7-2 one should one of the three justices appointed by Presidents Barack Obama and Joe Biden not leave the bench.

An even more nightmarish scenario: What will happen when anti-abortion zealots challenge a state law or constitutional provision protecting abortion as unconstitutional under the U.S. Constitution? Conservative lawyers and scholars have long claimed that the Fourteenth Amendment’s Equal Protection Clause protects fetuses because all states give them personhood status in criminal, tort, and property law. The Amendment protects the rights of “any person” to due process when a state deprives them of life, liberty, or property and to the “equal protection of the laws.” While many rely on this argument to defend Congress’s power to adopt a national abortion ban, it would apply equally to a direct challenge brought before the Supreme Court. The Court has not bought into this logic, let alone considered dispensing with the give-it-to-the-states abdication that guided Dobbs. But there’s no telling where the Court could go. And it needn’t strike down abortion-protection state statutes and state constitutional amendments to use fetal personhood reasoning to bless, say, requirements that aborted fetuses receive funereal burials.

So don’t listen to Trump’s pooh-poohing a national abortion ban or J.D. Vance’s dismissal of its likelihood. Instead, listen to what they say about judges. Crowing to the National Rifle Association in May, Trump vowed to remain focused on conservative judges—and in particular, he noted his advisors’ admonition that “[w]e like people in their thirties so they’re there for 50 years or 40 years.” Under Trump-Vance, the legal tableau for women will get much worse, and it won’t get better for a long time.

The post What Trump and Vance Could Do to What’s Left of Reproductive Freedom appeared first on Washington Monthly.

Every Autumn, Supreme Court analysts provide the public with cogent summaries of the last term and astute prophecies about what will happen after the First Monday in October when the nine justices gather for the new term.

I am as pompous as the next pundit, but in 2024, writing that kind of piece would feel wrong. Understanding the last term (if that is possible) is not a matter of extracting doctrine from jurisprudence but of sifting through rubble. Predicting the coming term seems like piecing together the anatomy of a dinosaur from a fossilized tooth and an anklebone.

Like the rest of American society, the Supreme Court is caught in currents it can’t predict or control. None of us knows, in the words of The Texas Chainsaw Massacre, who will survive and what will be left of them.

If there is any rational explanation for the chaos that was October Term 2023-24, I think—based on no inside information—it is that the justices now know that their own miscalculations have exposed them to danger and are terrified of what might happen next. The flood of decisions last June displayed more spasm than strategy. In a new term that already promises important culture-war decisions on transgender medical rights, “ghost guns,” and attempts by red states to censor material “harmful to minors” on the Internet, it is hard not to suspect that political calculation lay behind the last term’s spasms—and that next term, with the presidential election safely behind the Court, may not see a reduction in panic and a return of calculation in the Court’s decisions.

It is easy to see why there might be panic at One First St. N.E. The Court’s operations are so enfeebled that the vaunted “investigation” of the leak of the draft abortion opinion in 2022 came literally to nothing (perhaps because the “investigators” did not dare interview the justices under oath). The justices display ostentatious contempt for the institution’s norms, engage in financial dealings that smell to heaven, and openly scorn once-sacred canons about conflict of interest, recusal, disclosure, and the appearance of impartiality. And the Court itself, once bound by an internal ethic of confidentiality, has now begun to leak—less like the Court of past times and strikingly more like any other institution whose functions are not judicial but political and legislative. Witness the New York Times account of Chief Justice John Roberts’ maneuvers to seize control of the major opinions of the last Term.

“The Supreme Court,” as Senator Sheldon Whitehouse, the Rhode Island Democrat, told the justices in an unprecedented amicus-brief-cum-scolding, “is not well.” Indeed, it is sick enough that even President Joe Biden, who of all major political figures has most resolutely opposed genuine institutional reform, proposed substantial changes to the Court’s procedures and staffing in July.

Most ominously, the Supreme Court, for the first time in nearly a century, has forfeited the approval, and perhaps even the reluctant tolerance, of the public it serves. The new majority’s act has worn thin, and restoring the Court’s luster will be daunting.

The Court has moved from crisis into multiple organ failure. It may be suffering a crippling loss of credibility, something like what happened after 1857’s pro-slavery opinion in Dred Scott convinced the public that the Court had become literal enemy territory.

That perception would be fitting today as it was in 1860. For over a decade, American democracy has had no enemy more determined and resourceful than the conservative majority on the Supreme Court. It has warred ceaselessly on the Voting Rights Act; it has greenlighted partisan gerrymandering; it has assiduously worked to eliminate any barrier between massed wealth and political domination; it has set its face ruthlessly against any legal proceeding that would require the powerful to account for their actions to the powerless. But now that its authoritarian project stands on the brink of success, the Court seems suddenly worried that the forces it has nurtured may turn on it. As I read between the lines, the result is a swirling panic, an agonized alternation between the poles of arrogance and terror.

The bravado is patent. The Court this term took a wrecking ball to the power of Congress and administrative agencies: in Securities and Exchange Commission v. Jarkesy, it transferred financial regulation from the Securities and Exchange Commission (a critical New Deal reform designed to prevent a future stock market crash) to federal courts; in Starbucks Corporation v. McKenneyit continued its effort to wrest labor relations from another Franklin Roosevelt jewel, the National Labor Relations Board; in Ohio v. Environmental Protection Administration, it drew a target on efforts to tame interstate air polluters; and in Loper Bright Enterprises v. Raimondo, itused a dispute over observers on fishing boats to take from administrative agencies at large the power to interpret their own statutes.

Grasping for sweeping power is a curious move for an institution that cannot even manage its small staff, follows no binding code of ethics, is unable to provide any explanation for its own failures, and lacks the basic scientific literacy needed to tell the difference between a deadly pollutant (nitrogen oxide) and laughing gas (nitrous oxide). It is as if a tractor-trailer mechanic should scrub into an operating room and tell the surgeons, “I’ll take it from here.”

Beneath the swagger, however, the term’s opinions also betray a definite uneasiness—an anxiety akin to that of the babysitter in a slasher movie who hears a noise in the cellar. The Court has badly overplayed its hand in its other major project, declaring victory for one side in the culture wars. At the time it decided Dobbs v. Jackson Women’s Health Organization, the Court praised itself as bravely defying mere public opinion: “[W]e cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Justice Samuel Alito explained airily.

Perhaps so. But I think the Justices had expected a few days of bad headlines followed by a return of the public adulation they regard as their due. Instead, the Dobbs sparked a deep and (so far) sustained sea-change in American politics, one that blunted Republican hopes in 2022 and bids fair to do something similar in a few weeks. In four states—California, Michigan, Ohio, and Vermont—voters have passed citizen initiatives anchoring abortion in their state constitutions. In three—Kansas, Kentucky, and Montana—they have rejected initiatives aimed at cutting back abortion rights. This fall, in no fewer than ten states–Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nebraska, Nevada, New York, and South Dakota —voters will have a chance to repudiate Dobbs. That prospect has spooked Republican strategists aiming to reinstall Trump in the White House. For a Court majority that has worked devoutly to guarantee permanent Republican rule, Dobbs seems to represent a sobering miscalculation. Polls show abortion rights to be overwhelmingly popular—more popular by far than the Court that tried to do away with them.

Thus, after assuring the people that it cares not a button or fig for what they think, the Court last term became strangely reticent about abortion rights. In two high-profile cases this term, the Court confronted the implications of Dobbs; in both, the valiant majority hid in the judicial closet, shouting, “Nobody home!”

In a case called Food & Drug Administration v. Alliance for Hippocratic Medicine, a hard-right Trump judge had forbidden the sale of mifepristone, one of the pair of drugs that together produce a medical abortion. This medication has been FDA-approved for a quarter-century and has an excellent safety record. It is a vital part of a safe, at-home procedure that accounts for well over 50 percent of abortions in the U.S. The case offered the conservative majority an ideal opportunity to carry forward the logic of Dobbs. Remember how broadly Alito’s opinion rhapsodized about the many reasons to ban abortion:

respect for and preservation of prenatal life at all stages of development,; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.

In the same opinion, Alito was unable to find a single countervailing interest—not rape, not incest, not the health or even life of the mother—that might require an exception to a legislative abortion ban. In the world Dobbs made, logic suggests that even safe abortion drugs must be constitutionally worthless; in the new post-“administrative state” legal system, the mere fact of FDA approval would not shield such pharmaceuticals from the disapproval of five conservative judges.

Offered this chance to reaffirm Dobbs, however, the majority blinked. It discovered—with the Shocked! Shocked! tone of Casablanca’s Captain Renault—what had been evident from the start: that the plaintiff in the mifepristone case, a hastily constructed “association” called the “Alliance for Hippocratic Medicine,” could not show any injury or the prospect of injury, to itself or its members.

The conservative majority is pretty liberal with standing when deciding a case; in agenda cases, the required “injury in fact” is largely honorary, like the title “Colonel” in Kentucky. (Remember the Christian website designer who had claimed injury because at some point she might go into wedding website design and a gay couple might try to hire her, and when she refused, they might complain to the Colorado Civil Rights Commission, and the CRC might refuse to exempt her from the law, and so the Court simply had to carve a massive hole in the state’s anti-discrimination laws? Remember the football coach who was fired for offering a “quiet prayer of thanks,” although he wasn’t actually fired and the “quiet prayer” was actually a widely publicized media event in which, as Justice Sonia Sotomayor pointed out in dissent, “Members of the public rushed the field to join [Coach] Kennedy, jumping fences to access the field and knocking over student band members.” If you’ve got an agenda case, establishing standing doesn’t take much.

Except for when it does.

These “Hippocratic medicine” doctors, who had brought a sweeping anti-abortion claim on the eve of a presidential election, were out of luck. Justice Brett Kavanaugh’s opinion pointedly did not say that politicized advocacy groups could never have standing to second-guess the FDA: “It’s not clear that no one else would have standing to challenge FDA’s relaxed regulation of mifepristone.” The word “relaxed” is a remarkable way to describe the FDA’s rigorous process of testing and approval. Knowing how cynically the Court majority manipulated the timing of Dobbs, a sane observer would wonder whether standing for some other group opposed to mifepristone may perhaps—Hey, presto!-–be found in a year or so when forcing a near-total ban on medication abortion would be politically safer.

The impression of cowardice is strengthened by the Court’s other high-profile brush with abortion, Moyle v. United States, in which the Court cited the flimsiest of excuses to avoid another anti-abortion blockbuster. The case concerned a conflict between a federal statute, the Emergency Medical Treatment and Labor Act (EMTALA), and Idaho’s sweeping ban on abortion for any reason except officially reported cases of rape or incest or to “prevent the death of the pregnant woman”—pointedly omitting any exception to protect a pregnant patient’s health. The federal statute requires any hospital receiving federal funds to “provide either . . . such further medical examination and such treatment as may be required to stabilize the medical condition” or to transfer the patient to another hospital that can provide it. “Stabilizing” some dangerous labors may require an immediate termination of the pregnancy to prevent damage to a patient’s health—even though the patient may not be in danger of imminent death.

A federal district court blocked the Idaho statute pending a trial. But before one could be held, the Supreme Court issued an “emergency” order permitting the state statute to take effect. In other words, (in keeping with the Court’s Kremlin-level secrecy, no vote lineup was reported) five Justices were inclined to uphold the Idaho statute–and believed that Idaho would suffer “irreparable injury” if the statute did not go into immediate effect.

Yet the atmosphere of haste was strangely altered by the time the Court heard oral argument. Soon after, a majority of the Court voted to “dismiss as improvidently granted” the state’s appeal—which, remember, had been an emergency only a few months earlier. The dismissal order was a whopping 33 words, but a separate opinion by Justice Amy Coney Barrett, joined by Roberts and Kavanaugh, explained that after giving the whole thing a good hard think, the majority had concluded that there really might not be so darn much of a conflict between Idaho and federal law, and so it would reinstate the lower-court injunction and wait (as it should have done from jump) for proceedings in the lower courts to clarify the question. These three expressed no view about the merits, while the extreme caucus—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—dissented, indicating they were ready to rule for Idaho. (Alito, in his opinion, actually put the word “health” of the pregnant patient in scare quotes, as if concern for women’s “health” were a newfangled fad being foisted by the woke federal government on the helpless legislators of Idaho.) Justice Elena Kagan, joined by Justices Ketanji Brown Jackson and Sotomayor, wrote that they were ready to rule for the federal government.

For those of you scoring at home, that’s Idaho 3, federal government 3—with the deciding votes to be cast by justices who, holding their cards close, nonetheless have solid “prenatal life” records. There’s every reason to believe that, when review is “providently” granted, at least two of these three brave jurists will join their more outspoken comrades to allow Idaho to deny care to desperately ill pregnant women unless they are at the point of death.

Like the decision about mifepristone, such a decision would be conveniently deferred until after the presidential election.

The prospect of the 2024 election brings us to a series of cases that embody the possibility that most frightens the majority—that powerful government officials might someday be held accountable for crimes in office. This fear has haunted the conservative Court for years, leading to a series of decisions weakening federal anti-bribery and anti-corruption laws. The decision in Fischer v. United States extended the Court’s solicitude to hundreds of those who have been found convicted of invading and trashing the Capitol in an attempt to prevent the certification of Biden’s defeat of Trump. The Court expressed deep worry that these prosecutions, under a federal statute that prohibited “corruptly obstructing, influencing, or impeding an official proceeding” (in this case, congressional certification of electoral votes), meant that “a peaceful protester could conceivably be charged . . . and face a 20-year sentence.” The Court did not exactly endorse Republican claims that the brutal assault was a “peaceful protest” or a “normal tourist visit,”—but it did say that the Government’s interpretation of the statute would “expos[e] activists and lobbyists alike to decades in prison.”

The Court’s accountability phobia blossomed into full-scale panic at the idea that the Court’s patron, the twice-impeached Donald Trump, might pay even the slightest penalty for the extensive catalog of “high crimes and misdemeanors” he committed while in office.

Colorado officials refused to list Trump on the state’s primary ballot. They cited § 3 of the Fourteenth Amendment, which provides that “[n]o person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States” if he or she has previously sworn an oath “to support the Constitution of the United States” and then “shall have engaged in insurrection or rebellion against the same.” These officials, not without reason, concluded that Trump, having sent an armed mob to the Capitol to break up Congress and prevent certification of his 2020 defeat, thus was ineligible to serve. They were relying, in part, on an exhaustive examination of the “original meaning” of the Fourteenth Amendment by two prominent luminaries of the Federalist Society, William Baude and Michael Stokes Paulsen.

Alarm bells went off at 1 First St. NE. A scant two days after Trump filed an appeal, the Court granted cert.; the oral argument was set for a mere month later. A few weeks after oral argument, the Court’s opinion made quite clear that state officials were not to interfere with Trump, no matter what the Amendment’s text said, unless a majority of Congress agreed. There was no trace of “textualism” or “originalism” in the opinion. The requirement of Congressional action appears nowhere in the text of § 3 nor the debates surrounding its adoption, and, as scholars pointed out, it also makes no sense. Under the text of 3, a disqualification could supposedly only be lifted by “a vote of two-thirds of each House”; under the Court’s reading, however, the two-thirds requirement is meaningless since even if Congress passed a disqualification statute, a simple majority could repeal it.)

The near-lightning speed with which the Court decided this case made a telling contrast with the lassitude it brought to another threat to Republican electoral hopes–the special counsel’s indictment of Trump for his role in the events of January 6. Trump had moved to dismiss the indictment, claiming to be immune from criminal prosecution for his actions as president. District Judge Tanya Chutkan had dismissed this argument as almost frivolous: “Defendant’s four-year service as commander in chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

Special Counsel Jack Smith had immediately asked the Supreme Court to do what it did with the Idaho statute—take the case away from the lower courts in order to decide the immunity issue as soon as possible. Haste was needed if the prosecution was to proceed before Election Day. That prospect, however, did not move the Court’s majority, which allowed the case to proceed to the Court of Appeals.

Recall that when Trump needed speed to gain Colorado’s primary ballot, the conservative majority moved the case urgently to the front of the calendar. No such urgency was detectable in the immunity case. The Special Counsel’s application for direct appeal was rejected on December 22, 11 days after it was filed. The case then went to the Court of Appeals, which ruled against Trump’s immunity claim on February 6. Trump petitioned the high court for review on February 12; after a leisurely 16 days of consideration, the Court granted the petition–and delayed oral argument until the last session of the Term. After the argument, the Court took two months to produce an opinion. By a bizarre happenstance, that timing guaranteed that Trump would not face trial before the presidential election.

The opinion by Chief Justice Roberts is, not to put too fine a point on it, outlandish, indeed shocking. Trump, an ex-president, is utterly immune for any crimes he may have committed in office, as long as the crimes were “official acts”—a category the Chief Justice ostentatiously refused to define—and is “presumptively” immune for acts on the outer edges of his or her presidential duties. Of course, the Chief Justice assured the world a president is not “above the law,” heavens no; there is some category of “unofficial acts,” slim as it may be, that might land a president in trouble (all I can think of would be domestic abuse–though an argument could be made that a presidential spouse is a governmental subordinate, making abuse “official”– or stealing, during a vacation, from a church collection plate). The burden to show that an act—blackmail, embezzlement, insurrection, even assassination—is not “official,” Roberts said, is entirely on the government. And even if a grand jury indicts an ex-president for a culpable “unofficial act,” Roberts explained, the prosecution could not even discuss any “official act” in seeking to explain to a jury why the “unofficial act” broke the law. Prosecutors seeking to hold Trump accountable for dispatching the mob to break up Congress will thus run with two feet in buckets.

The special counsel’s prosecution, which concerned a conspiracy to negate a presidential election and impose a dictatorship on the country, might have provided an occasion to explore the ill-defined border between official and non-official acts. Jack Smith provided the Court with a 45-page indictment, but the Chief Justice declined to offer guidance to lower courts. Instead, it remanded to the District Court to decide “in the first instance” whether an act could carry criminal responsibility—meaning, of course, that even if the Trump prosecution persists past November, it would face a handy year or so of appellate review before any trial could take place.

At first glance, the sweeping opinion in Donald Trump v. United States seems like an act of colossal judicial hubris, a sort of in-your-face defiance of those who have clung to the idea that laws apply to the man from Mar-a-Lago. We are Trump’s court, it seemed to say.

But on closer inspection, the Court’s affect seems less arrogant than fetal-position defensiveness. The court appears to have not been persuaded so much by Trump’s legal team as it was intimidated by the former president himself. The opinion reeks of fear—a fear that Trump, if returned to office, will involve the Court in his scheme to use the law against those whom he conceives to have wronged him. Here is the most striking part of this term-ending blockbuster:

Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine.

Trump has already said he will try to jail Biden—and that odious case would surely land on the Court’s doorstep. Trump has shown himself ready to call down fire and brimstone—and perhaps physical harm– on the Justices if they obstruct him.

In other words, the Court may find itself in the same position as any other mainstream figure or institution trying to compromise with Trump. Once enlisted in the Trump project, there is no turning back. If you dine with Trump, no spoon will ever be long enough.

The court has already been asked for rulings designed to guarantee Trump’s victory in November. In the event of a second Trump term–on the evidence of his conduct in office—his respect for the Court will probably equal his respect for the World War I American dead. As long ago as 2018, Trump publicly attacked a district judge who had ruled against him, then rebuked the Chief Justice for defending that judge. In his response to Roberts, Trump pointedly put the term “independent judiciary” in contemptuous scare quotes.

One doubts that he has made peace with the concept now. True, on September 24, he suggested to a rally audience that criticizing the Supreme Court should be made a criminal offense carrying prison time. The justices must surely detect the proprietary tone of the idea—Mess with my justices, and I will hurt you. That solicitude may be as damaging as any denunciation.

Of course, Trump always reserves the hostile Tweets as a penalty for disobedience. And at the end of Trump’s term, he and his Attorney General, William Barr, clearly flirted with defying the Court’s decision barring a citizenship question on the Census form (though the defiance would have been disguised as compliance). They abandoned the idea only when it became logistically unworkable. Trump was even more scathing after the Court dismissed Texas’s bizarre lawsuit demanding that the Justices set aside the popular vote and award Trump the Presidency. “The Supreme Court really let us down. No Wisdom, No Courage!” he tweeted. The diction echoes another tweet—“Mike Pence didn’t have the courage to do what should have been done”—that sent a mob into the Capitol chanting “Hang Mike Pence!” (The Justices may have been as struck as the rest of us by TV images of rioters dangling nooses within a few hundred yards of the Court building.)

Trump’s running mate, J.D. Vance, indicated as long ago as 2022 that Trump should put himself above the Court: “I think that what Trump should do if I was giving him one piece of advice: Fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people. And when the courts stop you, stand before the country, and say [quoting an apocryphal statement attributed to Andrew Jackson], the chief justice has made his ruling. Now let him enforce it.”

It seems clear that if, by some bizarre miscalculation, the Court finds itself an obstacle to a re-elected Trump, he will brush them aside as readily as he has other disloyal servants, plunging the Court into a crisis from which it might not recover.

Meanwhile, the Democrats have, at least since the crude coup de main that installed Amy Coney Barrett within days of Trump’s loss in 2020, begun speaking seriously about what is called “Supreme Court reform,” floating proposals that range from a Congressionally imposed enforceable code of ethics to changes in the Court’s jurisdiction to term limits for the Justices to simply adding new Justices until this majority’s hold is broken. After the Court’s immunity decision, even the institutionalist Biden (who would not allow his “Supreme Court Commission” even to consider changes to the Court’s makeup and procedures) became a convert to a binding code of ethics and a system of term limits.

Thus, whoever wins the election in November, the Court is in for a bumpy ride.

When the wise grow fearful, they act like fools. The Court seems willing to do what is necessary to win Trump the presidency—Bush v. Gore, the sequels—but also a desire that whatever nefarious revenge schemes might dominate a Trump second term not involve the Court.

The Court is begging for mercy: Whatever you are planning, Mr. Trump, leave us out. Please, just leave us alone.

Good luck with that.

The post The Chaos of the Supreme Court’s Last Term—and What May Be Coming This Time appeared first on Washington Monthly.

Click here for the Monthly’s Presidential Accomplishment Index and more essays comparing Trump and Biden’s achievements in office.

Donald Trump’s most consequential accomplishment as president, the transformation of the Supreme Court, was made possible by dumb luck and the work of others. Thanks to the machinations of Mitch McConnell, the retirement of Anthony Kennedy, and the death of Ruth Bader Ginsburg, the 45th president was handed the opportunity to appoint three Supreme Court justices and create a conservative supermajority that is changing the very basis of American law and government. 

Joe Biden, by contrast, has had the chance to appoint only a single member of the Court, replacing one liberal justice, Stephen Breyer, with another, Ketanji Brown Jackson. The first Black woman justice has proved to be an influential addition to the Court, with her expertise in criminal justice and her brilliance in deploying textualism to undercut the conservatives. But due to circumstances outside either president’s control, Trump has had far more influence on the high court.

Many people may not realize that the same pattern applies to lower federal courts, where a president’s appointments can be as, or even more, consequential in the long run. Trump was able to place a record-breaking number of district and appellate judges, mostly because Republicans under McConnell blocked so many of Barack Obama’s nominees. (And because Obama himself didn’t get around to nominating judges to many open seats.) Biden had fewer opportunities teed up for him, but has done more with what he was given, nearly matching Trump’s record.

In a second term, either president will continue to aggressively remake the judiciary. Trump will likely name judges who are even more ideologically inclined—and loyal to him. Biden will have a chance to rebalance the circuit courts and appoint more judges with backgrounds in economic justice and labor needed to advance his agenda—if he learns from the procedural mistakes of his first term.

Let’s start with the numbers. Overall, Trump was able to fill 234 judgeships on the federal bench; Biden, less than a year from the end of his term, will need close to 60 to match that number. Of Trump’s judges, 174 were trial judges in district courts, 54 were judges in appeals courts, and three, as the world knows, were new Supreme Court justices—for a total of 226. 

One reason for Trump’s success was the number of vacancies at the end of Obama’s presidency. Under McConnell’s leadership, Republicans, then in control of the Senate, blocked most Obama nominees in his final two years, including the “stolen” seat denied to then Judge Merrick Garland on the grounds that voters deserved a say in the pick, and thus it would have to wait until after the 2016 election. From this obstruction, Trump inherited more than 100 vacancies when he took office, with 17 in the critical federal appellate courts. By 2020, Trump had filled more than one-quarter of all the appellate judgeships nationwide with his conservative picks. Another reason Trump got three Supreme Court justices is because McConnell didn’t hesitate to break his own rule in 2020, allowing Trump an appointment within weeks of the 2020 election when Amy Coney Barrett was confirmed just weeks before Trump’s defeat. 

Trump could move quickly because, with the support of Senate Republicans, he handed over selection of judges to the ultraconservative Federalist Society, which had a list of pre-vetted nominees prepared before Election Day. This is an advantage the GOP has over Democrats, who have wasted much time in the past three years squabbling over identities and procedures. (Speaking to the conservative outlet Breitbart in 2016, Trump promised, “We’re going to have great judges, conservative, all picked by the Federalist Society.”) This collaboration rendered the confirmation process speedy. Thus, the numbers don’t come close to explaining the really significant impact Trump has had on the law, since his judges (and justices) tend to be hard-right ideologues. 

According to a study done by The New York Times in 2020, more than a third of Trump judges filled seats previously occupied by Democratic appointees. As a result, in some reliably left-leaning circuits, including those serving New York, Connecticut, and San Francisco, the partisan gap in appointments has been equalized or even tipped rightward. Trump also moved two other circuits, the Third and the Eleventh, into the conservative column.

And these judges have so far remained loyal to right-wing ideology—not surprising because most of them, unlike typical judicial nominees, had been engaged in the right-wing culture war. They are more consistent in voting only for conservative outcomes, openly disagreeing more frequently with Democratic appointees than the norm. 

The Fifth Circuit Court of Appeals is particularly notable for Trump appointees willing to bend precedent and doctrine in favor of right-wing outcomes. For instance, the Fifth has ruled against limits on gun ownership for those under domestic violence restraining orders, and against a Biden administration policy encouraging social media companies to take down election and public health misinformation. By contrast, it ruled in favor of restricting the distribution of mifepristone in medical abortion.

Litigators are seeking to take advantage of Trump’s nominees’ proclivities by bringing a geographically broad-based attack on federal regulations, with cases in the Fifth, Eighth, First, Second, and D.C. Circuits undermining the ability of government to protect health and safety and control financial fraud. Knowing that at least one of these cases would make its way to the Supreme Court, they can be assured of having the anti-regulatory justices further dismantle the administrative state.

Making his impact all the stronger, Trump’s judges are also much younger than those nominated by other presidents—on average, a full five years younger than those nominated by Obama. The law professors David Fontana and Micah Schwartzman calculated in a piece in The Washington Post that the difference in age would mean 270 more years of service for Trump judges than Obama judges. That’s a lot of decisions to be rendered and a lot of lives affected. 

Now for Biden’s record: He’s head and shoulders above most of his Democratic predecessors. After taking office, Biden’s team, headed by former Chief of Staff Ron Klain, moved quickly. As of February 2024, the Senate has confirmed 177 of Biden’s nominees to Article III judgeships (the judges who have life tenure under the Constitution). Biden has appointed 40 judges on the circuit courts of appeal and 134 on the district courts; he has 19 nominees pending. Even so, he has had many fewer opportunities to make nominations simply because Trump, benefiting from McConnell’s obstruction, had more vacancies to begin with. 

Nonetheless, this record is exceptional compared to Obama’s or Bill Clinton’s; neither of them put as much energy or focus into filling judicial slots, with the consequent losses for progressive forces in the courts. Moreover, Biden has successfully moved a diverse group of nominees: approximately two-thirds are women and two-thirds people of color. And more than half of them come from legal backgrounds outside the usual route to the bench (prosecution and corporate law), instead encompassing public interest law, civil rights, and legal aid. 

But he has come up short in advancing judicial nominees who have a background in economics and labor. Such judges could help dethrone the hard-right deregulatory ideology Republican judges have carried forward, and challenge the “consumer pricing” standard of antitrust enforcement that has allowed big corporations like Amazon and Facebook to monopolize their corners of the economy over the past 40 years. He has named progressives to government posts—like Lina Khan to head the Federal Trade Commission and Jonathan Kanter at the Antitrust Division of the Department of Justice—but his judicial appointments haven’t been in the same mold.

Currently, there are 57 vacancies on the federal courts. In theory, Biden could fill them all, but that’s probably not possible for a variety of reasons. First, only 19 of these have pending nominations. Second, the close partisan division in the Senate means that Biden’s nominees must suit every Democratic senator, including mavericks like Joe Manchin and Kyrsten Sinema. Then there is the problem of the so-called blue slip. Many judgeships are filled by agreement with individual senators from the state where the court is based—and here Democratic senators have been slow to agree, and Republican senators recalcitrant. For example, it took Senator Ben Cardin more than a year to agree to the nomination of Nicole Berner, former general counsel to the Service Employees International Union, to the Fourth Circuit. Cardin implied that he opposed Berner because she does not live in Baltimore. 

To fill the current vacancies, Biden will likely have the most success in states like Arizona, New York, Pennsylvania, and California, whose senators are Democrats or caucus with Democrats, and thus presumably will furnish a blue slip to advance the nominees. Blue slip practices are determined by the current chair of the Judiciary Committee, at the moment Senator Dick Durbin of Illinois. But with the example of Berner and Cardin so fresh, even in states that should cooperate with the White House we may see Democratic obstruction for parochial and nonstrategic reasons.

So far, Biden has held off nominating people who can’t get blue slips from either Republicans or Democrats, but many are calling for him to do so. Durbin is unfortunately following in the footsteps of his Democratic predecessor at the committee, retired Senator Pat Leahy, who allowed Republican senators to block Obama’s appointments. Republicans, who controlled the Senate for six years between Leahy and Durbin, made the rule significantly less stringent, which allowed Trump to advance his highly ideological nominees out of committee over the objections of home-state Democrats. 

Because of the blue slip, when Biden is able to place his judges, they are having a smaller effect on the direction of the law because they tend to replace Democratic appointees in blue states. 

Should Biden win a second term, his success in transforming the judiciary will depend on a few open questions. If Republicans win back the Senate, they will likely do to Biden what they did to Obama in his last two years: block most of his judicial nominations. If Democrats hold the chamber, their excessive self-restraint might keep them from filling as many seats as they could—unless they abolish blue slips and name a more aggressive Judiciary Committee chair. (Sheldon Whitehouse’s name was mentioned in 2020, and Elizabeth Warren would be another good choice.) And finally, assuming Democrats have the chance to confirm more Biden judges, it remains to be seen whether they’ll pick more jurists with economic justice and labor backgrounds. Biden’s choice of political appointees at the DOJ, FTC, and elsewhere in the government should give us hope. And at this point, I think the Democrats finally get it: Courts matter. 

As for Trump, we can be sure it will be more of the same—but even more so. He’s indicated that his choices will be yet more conservative and more willing to abandon accepted understandings of law and precedent to reach conservative outcomes. Indeed, he says his Supreme Court nominees have shown themselves to be too “independent.” Even though the first-term appointees were far to the right, they did typically have solid legal credentials. But in a second term, allies say Trump has vowed to move committed ideologues instead of qualified conservatives. 

As Ty Cobb, one of Trump’s White House lawyers, recently said to The Washington Post about Trump’s first-term nominees, “They were intellectually qualified for the most part to become judges. I don’t think there’s a chance that will be the case in a second term.” 

The possibility that ties to the Federalist Society may now make a nominee seem too moderate should make us fear even more from Trump’s second-term crop. Hard-right, pro-Trump judges like James Ho and Aileen Cannon are already untethered from statutory texts and precedent, and we can only imagine what judges even more unbound by law might do to tilt our system into autocracy.

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