What can be done about this Supreme Court’s very worst decisions? (2024)

The Supreme Court’s recent opinion in Trump, which held that presidents have sweeping immunity from criminal prosecution for any official act — even something like ordering the Justice Department to round up and arrest their political foes — is such an unimaginable betrayal of the justices’ oath to “administer justice without respect to persons” that it casts a shadow over every decision these justices have ever handed down.

It’s like if you learned that your daughter’s third-grade teacher gave her cocaine. Some acts of betrayal are so profound that they shatter your ability to trust someone again and cause you to rethink every single thing they’ve done in the past — even the good things.

Under the Trump decision, a president who took advantage of the powers that decision grants would be the type of dictator the United States’ political structure is meant to guard against — a leader fully incompatible with the idea of constitutional democracy.

That easily makes Trump the worst decision the Roberts Court has ever handed down, but it is only the latest in a series of decisions that weaken our democracy and our Constitution. In the few years since former President Donald Trump remade the Supreme Court, the Court’s new majority has allowed states to nullify entire constitutional rights. They’ve claimed so much power that they now effectively control both the judiciary and most of the executive branch — they’ve literally given themselves a veto power over any regulatory decision made by a federal agency — of the federal government. And as they’ve done so, they’ve thrown lower courts into chaos by creating nonsensical new legal standards judges across the nation have struggled to follow.

Worse, only one of America’s two major political parties appears to have a problem with how the Supreme Court is reshaping America’s institutions. While Republicans have mostly cheered the Court’s actions, top Democrats have proposed several solutions to the legal mess the Court has created.

In the wake of the uniquely awful Trump decision, President Joe Biden proposed a constitutional amendment to eradicate Trump, along with separate proposals for term limits and a binding code of ethics for the justices. Senate Majority Leader Chuck Schumer (D-NY), meanwhile, wants to use a rarely invoked congressional power known as “jurisdiction stripping” to neutralize Trump’s immunity.

Realistically, however, none of these ideas are likely to rein in the Court because they are unlikely to ever become fully enforceable law. Amending the Constitution is virtually impossible, and it is literally impossible if either major political party opposes an amendment. Even if some of these reforms can be enacted through ordinary legislation, moreover, the Court’s Republican majority would probably just strike them down anyway.

Another solution is court-packing — adding seats to the Supreme Court to relegate the Court’s Republicans to the minority. This idea has the virtue of being constitutional — the Court has had as few as five seats and as many as 10 in the past — and it could be done at any time through ordinary legislation. But it also comes with enormous risks. Packing the Court would almost certainly destroy the legitimacy of the federal judiciary in the eyes of many Republicans and would lead to massive resistance from red states. It’s also unlikely to happen unless Democrats win massive majorities in Congress; even at the height of his popularity, President Franklin Roosevelt struggled to sell a court-packing plan after the Court tried to sabotage the New Deal.

Yet, as the Republican Party has shown with its own successful takeover of the Court, there are steps that Democrats — and supporters of constitutional democracy more broadly — can take now to start undermining this Court’s worst decisions. The Republican takeover of the federal judiciary, and the rush of decisions overruling seminal Supreme Court precedents that quickly followed, was the culmination of decades of organizing, fixating on decisions that Republicans wanted to see overruled, campaigning against those decisions as illegitimate, and identifying candidates for judicial office who could be counted on to overrule those decisions.

Roe v. Wade, for example, fell because the Republican Party unified around treating Roe as illegitimate. State lawmakers routinely passed legislation defying it, and forced the courts to strike that legislation down. These legal fights, in turn, reinforced the Republican Party’s identity as the anti-abortion party and reminded voters who oppose abortion that the way to end Roe was to vote for the GOP.

In all of these cases, the basic pattern is the same. Republicans — whether at the grassroots level or through elite groups like the Federalist Society — identified the cases they wanted to destroy. They united in opposition to them. They appointed justices who would loyally follow the GOP’s judicial agenda. And then they won.

This is a playbook those concerned about the current Court’s anti-democratic tendencies can follow, but it also requires them to unite much like Republicans did. Before they can get to that point, Democrats, and others concerned about the Court’s actions, need to reach a consensus about which of the Court’s decisions deserve the same treatment that the GOP gave to Roe.

Trump v. United States (2024) is the rare Supreme Court decision that grows more alarming as you dig deeper into the nuance of the decision.

The six Republican justices held that Trump, a man who literally tried to overthrow the duly elected government of the United States, had broad freedom to commit crimes while he was in office and that he would also be free to violate criminal laws if he returned to the White House. The Court’s holding that presidents may use their official powers to commit crimes has no basis in constitutional text or American legal tradition, and it’s hard to imagine a decision more incompatible with the idea that the United States is a democratic nation governed by the rule of law.

The Trump decision breaks down presidential actions into three categories and gives different levels of immunity to each. The most important thing to understand about the opinion, however, is that it places some of the most authoritarian actions a president could possibly take in the category with the highest level of immunity.

The Republican justices held that when the president exercises authority vested exclusively in them by “the Constitution itself,” they may do so even if those actions are “incompatible with the expressed or implied will of Congress” — including an Act of Congress declaring such actions to be criminal. Similarly, the Republican justices concluded that “the courts have ‘no power to control [the President’s] discretion’ when he acts pursuant to the powers invested exclusively in him by the Constitution.” So a court cannot try a president who commits a crime while exercising these powers.

One reason why this decision is so alarming is that the Constitution states that “the President shall be commander in chief of the Army and Navy of the United States.” As Justice Sonia Sotomayor warned in dissent, “when [the president] uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

In fairness, the majority opinion did not explicitly state that Trump could order Navy SEALs to assassinate his rivals — it only implied it — but it rather explicitly says that Trump could have ordered the Justice Department to round up and arrest those rivals. “Investigation and prosecutorial decisionmaking is ‘the special province of the Executive Branch,’” the Republican justices conclude, adding that “the Constitution vests the entirety of the executive power in the President.”

Indeed, the Republican justices went even further, holding that Trump could not be prosecuted even if he ordered the Justice Department to act based on “shams” or “for an improper purpose.” Under Trump, that type of behavior does “not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.”

The Republican justices’ decision does not even attempt to make the case that presidential immunity can be found anywhere in the Constitution. Instead, the opinion is rooted in the GOP justices’ policy judgment that the president should not be chilled from taking “bold and unhesitating action” by “the threat of trial, judgment, and imprisonment.”

All of this is why the Trump immunity decision is one of the most reckless decisions ever handed down by a court of the United States. It strongly suggests that a president can have their rivals killed, and it explicitly permits a president to round up their enemies and prosecute them on fabricated charges. And it does all of this in response to the prosecution against a former president who tried to illegally remain in office after he lost his bid for reelection.

Whole Woman’s Health v. Jackson (2021) established that any state can neutralize literally any constitutional right, simply by writing a law that is enforced solely by private bounty hunters.

While the law at issue in Jackson, a Texas law known as SB 8, targeted abortion rights, Jackson’s reasoning would apply equally to a law allowing bounty hunters target anyone who criticizes a state governor, or that sics these bounty hunters on any Black family that sends their child to a majority-white public school.

Like the Trump immunity decision, Jackson is incompatible with constitutional democracy and must be overruled.

To understand Jackson, it’s important to first understand the Rube Goldberg-like mechanism that SB 8 uses to ban nearly all abortions in the state of Texas. In Ex parte Young (1908), the Supreme Court established that a plaintiff alleging that a state law is unconstitutional should sue the state officer charged with enforcing that law. So, for example, if Texas had passed a law requiring state troopers to blockade abortion clinics, a plaintiff might sue the chief of the state’s police force.

SB 8, however, provides that this anti-abortion law “shall be enforced exclusively through … private civil actions.” It provides that “any person, other than an officer or employee of a state or local governmental entity in this state” may bring a lawsuit against anyone who performs an abortion after the sixth week of pregnancy. Plaintiffs who prevail collect a bounty of at least $10,000 from the abortion provider, and there is no cap on the size of this bounty.

Thus, the law sought to make an end run around Young by preventing state officials from directly enforcing the law. And five of the Supreme Court’s six Republicans signed onto this gambit, prohibiting anyone from filing a federal lawsuit seeking to block the law.

As Roberts, the only Republican to dissent in Jackson, said of the Texas law, “the clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings” in Roe and Casey (Jackson was decided several months before the Supreme Court overruled those decisions). Jackson established that a state can effectively immunize an unconstitutional law from federal judicial review simply by using bounty hunters to enforce it.

In fairness, Jackson does allow someone who has already been sued by a bounty hunter to argue in that lawsuit that SB 8 is unconstitutional and that the suit should be shut down. But this remedy is meaningless because SB 8 also places no limit on the number of suits that could be filed against any one individual. A single person who is suspected of performing an abortion in Texas could potentially be hit by thousands of lawsuits. Even if they win all of them, their legal bills would bankrupt them.

And, again, nothing in Jackson prevents other states from enacting SB 8-style laws to nullify any other constitutional right.

Jackson, in other words, must be overruled because it is fundamentally hostile to the idea that states must respect the constitutional rights of individuals.

Reasonable people can disagree about who was right about the wisdom of this policy. But there’s no plausible argument that the Biden administration’s policy was illegal. The loan forgiveness policy was authorized by a federal law known as the Heroes Act, which gives the US secretary of education the power to forgive student loans during a national crisis.

And yet, despite unambiguous statutory authorization, the six Republican justices decided to implement their party’s preferred student loan policy from the bench.

Under the Heroes Act, the education secretary has broad 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.” The Biden administration’s student loan program was one of many financial relief programs tied to the Covid-19 pandemic. Trump declared the pandemic a national emergency in 2020, and Biden left his declaration in place until mid-2023.

Several other provisions of the law, moreover, should have removed any doubt that the Secretary of Education, and not the Supreme Court, got to decide whether to forgive loans during the Covid pandemic.

Among other things, the Heroes Act waives a lengthy process known as “notice and comment” that federal agencies normally must undergo before changing a federal policy — allowing officials to prioritize quick and decisive action over following normal procedural rules. The law also provides that the secretary may dole out student loan relief en masse (“the Secretary is not required to exercise the waiver or modification authority under this section on a case-by-case basis”). And the law even contained a provision instructing courts not to interpret other federal statutes to limit the secretary’s authority unless that statute was “enacted with specific reference to” the Heroes Act.

Thus, even if the Republican justices had been able to point to a statute that explicitly forbids the very same loan forgiveness program created by the Biden administration, courts were still required to uphold that program unless this hypothetical statute specifically stated that it overrides the Heroes Act.

And yet, all six Republican justices reached the implausible conclusion that the Heroes Act did not authorize the Biden administration’s student loan forgiveness program.

Perhaps recognizing that their statutory argument is weak, the same six Republicans also claimed that the program violates something called the “major questions doctrine,” a doctrine that was recently invented by the Supreme Court, and that calls for courts to treat significant policy decisions by federal agencies with skepticism, unless that decision is unambiguously authorized by Congress. As the Court has described this doctrine, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”

But, even setting aside the fact that the major questions doctrine appears nowhere in the Constitution or in any federal statute, Congress spoke clearly when it enacted the Heroes Act. It gave the secretary broad authority. It waived procedural constraints on the secretary. It explicitly gave the secretary power to dole out relief to many borrowers at a time. And it forbade courts from reading any federal statute to limit the secretary’s authority unless that statute specifically mentioned the Heroes Act.

The Republican justices, in other words, claimed the power to override both elected branches of government, even when no law or constitutional provision authorizes them to do so. That realignment of power — like the ones seen in Trump and Jackson — is not compatible with the American system of constitutional democracy.

But Bruen is also a showcase of the Roberts Court’s arrogance and incompetence. The New York State gun law struck down by Bruen, which limited who could carry a gun in public, was 108 years old when it reached the Supreme Court. So, for more than a century, no court took issue with this law until the current crop of Republican justices suddenly claimed that they’d found a constitutional problem with it that every other judge in the last century had somehow missed.

Briefly, Bruen held that all gun laws are unconstitutional unless the government can “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” As the lower courts’ confusion shows, no one seems to know what the hell that means.

Bruen also casts special scorn on gun laws that seek to address “a general societal problem that has persisted since the 18th century” — like murder — if 18th-century lawmakers did not seek to solve that problem in the same way as modern-day legislatures.

Almost immediately after Bruen was decided, a federal appeals court declared, in United States v. Rahimi, that a federal law prohibiting people subject to domestic violence restraining orders from possessing guns is unconstitutional. And the most astounding thing about this lower court decision is that it was correctly decided under Bruen. Domestic violence, after all, existed in the 18th century. But no state made it a crime for a married person to beat their own spouse until 1871.

To its credit, the Supreme Court recognized in the Rahimi case that allowing people who are a violent threat to their own romantic partners to arm themselves is untenable, and it upheld the federal law at issue in that case. But Rahimi did nothing to clarify the incomprehensible legal rule announced in Bruen. Now, under Rahimi, “a court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit” — again, whatever the hell that means.

This whole saga exposes a Republican Supreme Court majority that is simply terrible at their jobs. Set aside the policy question of how much gun regulation should exist in the United States. The core job of the Supreme Court is to articulate legal rules that can be consistently applied by all of the thousands of judges in the United States. Yet, in Bruen, they failed at that task so miserably that judges from across the political spectrum complained that they simply could not figure out how Bruen is supposed to operate.

And then, when confronted with those complaints, the Court doubled down on its vague appeal to “tradition” that no one can figure out.

Having identified four of the least defensible decisions handed down by the Court’s current Republican majority, allow me to finish this essay by saying something controversial: I am unsure whether Dobbs v. Jackson Women’s Health Organization (2022), the decision overruling Roe v. Wade, belongs on the list of cases that are fundamentally hostile to constitutional democracy.

I say this, not because Dobbs was correctly decided, and not because I have a wavering commitment to abortion rights. Rather, I say it because Dobbs revealed an unfortunate truth about all constitutional rights. A Supreme Court decision protecting a particular right — whether it is the right to abortion, the right to free speech, or any other right — is only worth something as long as there are five justices who will uphold that decision. Once that majority is lost, the right disappears.

Worse, while a precedent like Roe v. Wade cannot protect abortion patients from the whims of the Supreme Court, it can lull them into a sense of false security.

One lesson we’ve learned since Dobbs is that the right to have an abortion enjoys overwhelming majority support among US voters, even in some very red states. Fifty-nine percent of Kansas voters decided to keep abortion legal in a 2022 referendum. Abortion rights won by a 13-point margin in red Ohio. In Gov. Ron DeSantis’s Florida, a new abortion rights ballot measure appears to be cruising to victory — a recent poll found that 60 percent of Floridians believe that the right to an abortion should be written explicitly into the state’s constitution. Only 20 percent oppose that position.

And yet, when Roe was still good law, many voters who support the right to choose nonetheless voted for Republicans like Donald Trump, who appointed three members of the Dobbs majority to the Supreme Court. Roe convinced many of these voters that abortion rights were safe, even though Republicans only needed to replace one member of the Court’s pro-abortion majority to eliminate Roe on the day that Trump was elected.

If two members of the Dobbs majority leave the Court tomorrow, to be immediately replaced by Biden appointees, then I would support overruling Dobbs. Among other things, such a decision would end the suffering of women who are being forced to wait until their lives are in danger before their red-state doctors are willing to risk jail time by terminating their pregnancy.

But, realistically, clawing back the Court’s Republican majority will probably take years, or even decades. By that point, abortion may once again be legal throughout the United States — either because of state-by-state campaigns like the Ohio ballot initiative or because Congress enacts legislation legalizing abortion in all 50 states.

In that world, it is far from clear that overruling Dobbs would help the cause of abortion rights. Again, as Dobbs itself shows, a Supreme Court precedent is a weak guarantor of fundamental rights. And, as Trump’s election shows, a Supreme Court decision protecting abortion rights can fool voters into thinking that it is safe to elect anti-abortion candidates.

Leaving Dobbs on the books, by contrast, could lead to a durable electoral majority that will lock out of power any party that attempts to take away the right to reproductive freedom. That’s a far more powerful safeguard against abortion bans than some rinky-dink court decision.

In any event, there is no need to resolve this question of whether Dobbs belongs on the same roll of dishonor as Trump or Bruen today. We will know a great deal more about how Dobbs has changed the political landscape after the 2024 election. And it is very likely that there will be several more elections before the Court’s current, Republican majority can be broken up.