Unbounded Hubris

Justice Kagan wrote in her Loper Bright dissent, “A rule of judicial humility gives way to a rule of judicial hubris." She might just as easily have been summarizing this entire Supreme Court term.

I’ll be honest: I had a post drafted and ready last week that recounted my anger and resolve at the Supreme Court’s decisions completely upending the law that governs executive agencies, and the resulting harm and chaos that will come to our ability to drink clean water, protect workers, and ensure access to health care, among so many other things. 

Then I read the decision in Trump v. U.S. And none of my words felt like enough anymore.

Every legal expert and scholar thought Trump’s claims didn’t stand a chance. But his hand-picked supermajority ruled in his favor anyway — declaring that he is immune from prosecution for any “official” criminal acts he committed while in office.

Six unelected, unaccountable right-wing justices decided that Trump should not face trial for the events of January 6th before this next election. But they did so much more than that. By “brute force,” in the words of Justice Sotomayor, they made the president “a king above the law.” For a group of people who claim to be so enamored with the Founders, it can’t be lost on them that this country was created so that every person should be equal under the law, and no one should have the powers of a monarch. 

They simply do not care about the law. There is no low to which they will not stoop — and no legal principle they respect more than their desire to arrogate power for themselves and their party.

This is a disastrous power grab — but we can’t forget it’s one of many disastrous power grabs by the court this term. As I look back on these last few weeks of opinions, I want to share some of the themes that stuck out.

Unbounded Hubris

If I only had one word to characterize the court’s opinion in Loper Bright Enterprises v. Raimondo, it would be hubris.

Just a day after the court posted an opinion where Justice Neal Gorsuch incorrectly identified a chemical in his opinion preventing the EPA from protecting clean air, the court released its ruling in Loper Bright — overturning the 40-year-old Chevron doctrine and giving judges authority over agency experts in how federal rules and regulations are implemented. (And of course, giving itself the final say in such matters.)

It’s a mind-boggling display of arrogance. And it’s emblematic of perhaps the only consistent principle that has emerged from the current court majority: that it should have the final say on everything — and that the other branches of government only have legal authority when they agree with the right-wing justices’ policy preferences.

We’ve seen them do so several times this term alone:

• In SEC v. Jarkesy, where they made it harder for the SEC to hold fraudsters accountable and, in the process, stripped hundreds of laws duly passed by Congress of their meaning.

• In Garland v. Cargill, where they intentionally played games with the language of a federal law prohibiting bump stocks — devices which effectively convert semi-automatic firearms into machine guns — to put these dangerous weapons back on the streets.

• In Moyle v. U.S., where they kicked the question of which pregnant women should get medical care and which should be left to die in hospital waiting rooms until after the 2024 election — a move Justice Ketanji Brown Jackson said was designed to allow the majority a “do-over…at a comparatively more convenient point in time.”

Unmasked Extremism

In years past, there has been an effort spearheaded by Chief Justice Roberts to appear “moderate.” But that PR strategy fell apart these past few weeks. This is a right-wing court determined to make the most extreme policies from the bench.

Just when it seemed like the corrupt right-wing justices could not get more brash in their rejection of ethics, they greenlit bribes to government officials in a decision in Snyder v. U.S. that drew widespread derision from inside and outside the courtroom.

Jackson called the majority’s statutory interpretation one that “only today’s court could love.” 

And we can’t forget that in one of the highest-profile cases of the term, the court rejected a challenge to the FDA’s approval of mifepristone… on standing grounds, rather than the merits. What does that tell us? First and foremost: that the right-wing movement is already reviving its attacks on medication abortion. But also: that this court is no longer fooling anyone. Where Roberts may have received unearned kudos on his court’s “restraint” for a decision like this in past terms, fewer people than ever are buying it.

This is an extreme court, and the justices aren’t even attempting to hide it anymore.

Unrelenting Turn toward Authoritarianism 

This term, the court revealed its most true and honest nature: It is on an unrelenting mission to destroy democracy and ensure power lies in the hands of a small few. 

We can certainly feel confident that the court’s “if the president does it, it isn’t illegal” stance revealed in Trump v. U.S. will not apply equally to Democratic and Republican presidents. As Justice Sotomayor wrote, she dissented, “[w]ith fear for our democracy.”

I believe this term will be seen as  a pivotal point in the turn toward authoritarianism — unless we do the hard work of fighting back, reclaiming our courts and our country.

The court’s far-right Republican operatives want us to feel powerless. But our elected leaders have the power to rein them in — and we have the power to demand that they do so.

It has never been more obvious that we need to not only reform the court, but rebalance it to swiftly disempower the anti-American and anti-democracy cabal that is destroying the rule of law. I hope you’ll join us in this work. Pledge your support of court reform today.