The importance of staying angry at the Supreme Court

Chief Justice John Roberts ended his final opinion of the Supreme Court’s just-completed term by scolding his liberal colleagues. “It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” Roberts wrote in response to a dissenting opinion by Justice Elena Kagan — which laid out in detail how Roberts and his fellow Republican appointees had just gone far beyond the proper role of the judiciary.

Nor was Roberts the only justice this year who intimated that the justices’ rulings are beyond criticism. In an interview published by the Wall Street Journal in April, Justice Samuel Alito complained that the justices “are being hammered daily” by critics, falsely claiming that this level of disparagement is “new during my lifetime.” He also claimed that lawyers, the very people who are most educated about the courts and most capable of explaining their shortcomings, have a special obligation to defend his Court against criticism.

One year after the Court’s GOP-appointed majority overruled Roe v. Wade, the same justices behind that decision remain emboldened, apparently eager to settle old scores, and openly disdainful of those who dare to question the wisdom of their rulings. At least two of them have accepted lavish gifts from billionaires, and are contemptuous of anyone who tells them it is wrong for powerful public servants to do so.

It’s disturbing that two of the nine justices, who collectively have the final word on how to read the First Amendment, would even suggest that they should not be criticized. But it is not particularly surprising. Federal judges, who are not elected, must draw their legitimacy from the public perception that they are obedient to a legal text. Criticisms like the Kagan dissent Roberts responded so sharply to can refute that perception, and feed the rapidly growing disapproval of the Court.

Similarly, disparagement of the justices and their decisions is one of the most powerful weapons ordinary Americans can wield against the nation’s nine justices. Indeed, if there is one lesson to be drawn from this Court’s recently completed term, it is to never underestimate the power of holding a grudge against the Supreme Court.

The Court’s GOP-appointed majority is settling old grudges

Until very recently — as in, less than 10 days ago — the right of universities to pay limited attention to race when admitting students was grounded in well-settled law. The Court first ruled that affirmative action is legal, albeit subject to significant constraints, in Regents of the University of California v. Bakke (1978).

The Court, moreover, reaffirmed Bakke in its 2003 decision in Grutter v. Bollinger. It did so again in 2013. And again in 2016.

And yet, despite the fact that the Court had time and time again rejected efforts by racial conservatives like Edward Blum — the white activist behind many lawsuits challenging affirmative action — Blum and similarly minded advocates continued to hold a grudge. They were joined in holding onto that grudge by many of the justices themselves, and by powerful groups like the Federalist Society, which played an outsize role in selecting former President Donald Trump’s judicial nominees.

The briefs in Students for Fair Admissions v. President and Fellows of Harvard College, the case that the Court’s GOP-appointed majority used to end affirmative action at nearly all universities last month, raised few, if any, new legal arguments that weren’t heard before by the Court in Bakke.

Nor has there been some triumphant victory over racism in the United States that eradicates the case for affirmative action. Though incomes and college graduation rates have risen for all racial groups within the United States since Bakke, the median Black household still earns at least $33,000 less in annual income than the median white household.

No, the Supreme Court did not strike down affirmative action because of any change in the law. It struck it down because racial conservatives organized. They recruited powerful institutions like the Republican Party and the Federalist Society to their cause. And then they made a deal with the devil, as Trump-skeptical legal conservatives agreed to back his bid for the presidency in return for a small army of Federalist Society judges.

Men like Ed Blum held a grudge. And they held onto it for decades. Until they won.

This is, of course, the same story that played out in the last Supreme Court term, when the Court eliminated the constitutional right to abortion, and when it drastically expanded the rights of gun owners. Again, there were no important new insights in any of the briefs filed in Dobbs v. Jackson Women’s Health Organization (2022) or in New York State Rifle & Pistol Association v. Bruen (2022).

Those cases were decided the way they were because abortion foes and gun rights advocates organized, took over the Republican Party, and held onto their grudges. They have nothing whatsoever to do with “the law.”

Lawyers’ grudges are the most powerful grudges of all

There are, of course, mass movements against abortion, against affirmative action, and in support of expansive gun rights. Before racial conservatives convinced the Supreme Court to implement their college admissions policy preference from the bench, for instance, they successfully convinced voters to abolish affirmative action in many states.

The same cannot be said about the Supreme Court’s “major questions doctrine,” a legal rule largely invented by Republican appointees to the Supreme Court, which played a major role in the Biden v. Nebraska decision striking down the Biden administration’s student loan forgiveness program.

That case asked whether a federal law known as the Heroes Act permits the US Department of Education to reduce many student borrowers’ loans — some by as much as $20,000. The correct answer to this question is “yes,” as the Heroes Act gives the secretary of education sweeping authority to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs ... as the Secretary deems necessary in connection with a war or other military operation or national emergency.” And there’s no question that the Covid-19 pandemic, which inspired both the Trump and the Biden administrations to modify many student loan obligations, was such a “national emergency.”

The major questions doctrine, however, enables the Court to strike down programs, like Biden’s proposed loan relief under the Heroes Act, if a majority of the justices deem those programs too ambitious. As the Court has described this doctrine, it requires “Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”

But this doctrine comes from nowhere at all. It is mentioned in no statute, and it certainly isn’t mentioned anywhere in the Constitution. As Justice Kagan has written, the major questions doctrine is nothing more than a “get-out-of-text-free card,” frequently used to strike down programs that are authorized by the explicit text of a federal law, but that a majority of the justices don’t like.

Yet, while the major questions doctrine cannot be found in the text of any law, it is easy to tell the doctrine’s origin story. And that story is one about very powerful lawyers who decided to hold onto a grudge.

As recently as the Ronald Reagan and George HW Bush administrations, when Republicans controlled the executive branch — and with it the power to wield any authority delegated to federal agencies by Congress — many of America’s preeminent legal conservatives were staunch defenders of the idea that courts should defer to those agencies. In 1989, no less of a Federalist Society eminence than Justice Antonin Scalia delivered an important lecture arguing in favor of such judicial deference.

After President Barack Obama took office, however, and right-wing lawyers started to get a taste of what it looks like when Democrats wield executive power, all of this changed. By Obama’s second term, the Federalist Society’s annual meetings became a showcase of proposals to limit the power of executive agencies. According to a 2018 book by legal journalist David Kaplan, the reason the Trump White House chose Neil Gorsuch as their first Supreme Court nominee is because Gorsuch was an outspoken proponent of expanding the power of federal judges to strike down actions by federal agencies.

The Nebraska decision, in other words, is no less of a product of political organizing than the Court’s decisions in Dobbs or Harvard. It’s just that this organizing took place among lawyers, and specifically within the Federalist Society.

And, as it turns out, this kind of organizing is even more potent than the mass movement that formed in opposition to Roe. It took nearly 50 years for abortion opponents to secure the votes they needed to win in Dobbs. And it took nearly as long for people like Ed Blum to destroy Bakke. By contrast, the strong version of the major questions doctrine that the Court applied in Nebraska went from a pipe dream shared by many right-wing lawyers to a legal doctrine embraced by the Supreme Court in less than a decade.

Several key justices let go of two grudges this term

After the last two Supreme Court terms, it’s easy to see how a liberal could be tempted by despair. At least two of the justices are absurdly corrupt, accepting lavish gifts from Republican billionaires. And most of the justices appear to be going down a checklist of long-held conservative grudges, ticking off more boxes with each passing year.

And, on top of all of that, the Court’s Republican-appointed majority has shown extraordinary willingness to bend the Court’s own rules to benefit one of the most powerful constituencies within the GOP — the religious right — while simultaneously bending them in the other direction to hurt liberal causes.

Consider, for example, the Court’s June decision in 303 Creative v. Elenis, in favor of a Christian conservative website designer who wishes to discriminate against same-sex couples who might want to hire her to design their wedding website in the future. Notably, this web designer has never designed a wedding website before; she has never been approached by a same-sex couple who wished to hire her to make such a website; and Colorado’s lawyers expressed doubts that the state’s anti-discrimination law applies to her at all, even if she did refuse service to such a couple.

Nevertheless, the Court ruled in favor of this woman’s challenge to Colorado’s civil rights law, despite its holding in Texas v. United States (1998) that “a claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’”

And yet, despite this Court’s penchant for Calvinball, there was one important area this term where the Court played things by the book. In a pair of voting rights decisions, the Court rejected efforts to effectively rewrite the Voting Rights Act and the Constitution itself in ways that would have benefited the Republican Party. And these two decisions may, in the long run, prove to be the most consequential of this just-concluded term.

In Moore v. Harper, the Court rejected a deranged legal theory that sought to nullify every state constitutional provision that protects voting rights or that restricts gerrymandering. Under the strongest version of this argument, known as the “independent state legislature doctrine” (ISLD), state governors would also lose their power to veto laws impacting federal elections, and state supreme courts would lose their power to strike such laws down.

Ordinarily, such a ridiculous legal argument could be dismissed as a curiosity, but a majority of the current justices endorsed versions of the ISLD in the past. Roberts did so in a 2015 dissenting opinion (though he later walked back his support for the ISLD), and four other GOP-appointed justices did so in the lead-up to the 2020 election.

But then, a year after taking up Moore, the Court released a decision that was as full-throated a denunciation of the ISLD as anyone reasonably could have expected from this Court. It left open the possibility that the Court could decide the winner of a very close election, but the Court already did that in Bush v. Gore (2000). Rather than lighting many of the rules governing federal elections on fire, the Supreme Court maintained the status quo.

Similarly, in Allen v. Milligan, the Court decided to leave in place safeguards against racial gerrymandering that have been in place since Thornburg v. Gingles (1986). That may seem like a minor decision, but Milligan also involved the “results test” under the Voting Rights Act — a test that Chief Justice Roberts has wanted to kill since he was a young lawyer working in the Reagan Justice Department.

In the very same term that the Court seemed to be running down a checklist of Republican Party priorities, in other words, several key justices gave up longstanding grudges against voting rights and democracy. And that means that Democrats have a real chance of fighting back against this highly partisan Court at the polls.

The case for optimism in the face of a partisan Supreme Court

There are some signs that, despite its overreach in cases like Nebraska, this Supreme Court understands that there are certain lines it must not cross. Beyond the two pro-democracy decisions this term, the justices were aggressive in reversing the Fifth Circuit, a far-right court dominated by Trump appointees and other MAGA stalwarts.

Among other things, the Court blocked the Fifth Circuit’s attempt to effectively ban the drug mifepristone, which is used in more than half of all abortions in the United States. And it also shot down an argument, frequently raised by nativist judges on the Fifth Circuit and elsewhere, that the Biden administration does not enjoy the same discretion over immigration policy enjoyed by past presidents.

So, while this Supreme Court frequently exercises arbitrary authority over US policy, it drew the line against decisions that could destroy democracy in the United States altogether. And the justices also showed that they are unwilling to sign onto the MAGA movement’s more novel legal arguments. This Court holds old grudges, but it does not necessarily sign on to every new grudge held by the rightmost fringe of the judiciary.

If, and this is a big “if,” the justices hold this line — sometimes wading into policy debates where they don’t belong, but leaving democracy in place — then Democrats have real reason to hope that they can eventually regain control of the Court. And, if they hold the right grudges, they can eliminate much of the current Court’s legacy.

For one thing, the Court’s polling numbers are in the toilet. Gallup’s poll shows disapproval of the Supreme Court at record highs. A May poll by Marquette University reached a similar conclusion, determining that 59 percent of US adults disapprove of the Court. A Quinnipiac poll released in June — after news broke that Justices Clarence Thomas and Alito accepted expensive trips from Republican billionaires, but before the Court released its biggest decisions of the term — found that 59 percent of registered US voters disapprove of the Court, and only 30 percent approve.

And as the Court has lost public support, Democrats — both at the highest levels and at the ballot box — have stepped up their efforts to push the judiciary in a different direction.

President Joe Biden made confirming federal judges who can dilute the Republican Party’s influence on the bench one of his highest priorities. As of this writing, the Senate has confirmed 133 of Biden’s judges, 11 more judges than Trump had appointed at this point in his presidency, according to the Federal Judicial Center. And the Trump White House was itself unusually aggressive in placing judges on the bench. (All of this said, Biden has only appointed one justice, while Trump appointed three. Presidents, of course, have little control over when a lifetime-appointed justice leaves the Supreme Court.)

Moreover, while past Democratic presidents often nominated prosecutors, corporate law partners, and other lawyers who spent their careers working on behalf of the already powerful, Biden has selected an unusually large number of public defenders, civil rights lawyers, and others who’ve spent their careers advancing liberal or democratic values. In just one week in June, the Senate confirmed Dale Ho — arguably the nation’s preeminent voting rights litigator — to a powerful district court in Manhattan, and then confirmed Julie Rikelman, a similarly prominent abortion rights lawyer, to the First Circuit.

Meanwhile, in the wake of the Supreme Court’s rightward turn, Democrats in several states are demanding judges who align more closely with progressive values. In Wisconsin, for example, voters sent Janet Protasiewicz to the state supreme court by a 10-point margin, after she campaigned on protecting abortion rights after Dobbs, and against Republican efforts to rig elections. Democratic state senators tanked Democratic Gov. Kathy Hochul’s nomination of Hector LaSalle, a conservative-for-New-York judge on a state appeals court, to be the state’s top judge.

Similarly, major players within left-leaning politics are organizing around reshaping the Supreme Court. Last month, for example, a coalition known as United for Democracy — which includes Democratic power players such as Planned Parenthood and MoveOn, plus major unions such as SEIU and the National Education Association — dropped a $1 million ad buy criticizing the Supreme Court. Its first ad lays gun violence, air pollution, and reduced access to abortion at the feet of the justices.

This kind of campaign infrastructure is important for Democrats, not just because it can help during election years, but because it can help the party and its voters hold onto grudges. Again, the reason why Roe and Bakke are no longer law today is because activists in the Republican Party spent decades building similar infrastructure and making similar pushes to place judges with a grudge on the bench.

And so it should not surprise anyone that Roberts and Alito want you to believe they are above the kind of harsh criticism Republicans directed against the Supreme Court for years. They know, as much as anyone, that their legacy can be dismantled by a well-maintained grudge.