The Supreme Court’s radical term — and what voters can do about it
By Eva Wood, staff attorney
The Supreme Court has long been viewed as a non-partisan branch of the government, separate from the division of the legislative and executive branches. That traditional reputation of fairmindedness has begun to fade in the face of increasing partisan gamesmanship on and about the Court. In an unprecedented move, Senate Republicans refused to allow President Obama’s nominee to have a confirmation hearing until after the 2016 election. President Trump then appointed three justices, including one only a month before the 2020 election. Each of the justices nominated by President Trump professed in their hearings that they would uphold Supreme Court precedent, but they have since undertaken a radical remaking of American constitutional law, overturning decisions that have been affirmed and relied upon for decades.
In 2022 and 2023 we saw reproductive rights decimated by Dobbs v. Jackson Women’s Health Organization (2022), common sense gun reform blocked in New York State Rifle & Pistol Association, Inc. v. Bruen (2022), public education attacked in Carson v. Makin (2022); and anti-discrimination laws undercut by 303 Creative LLC v. Elenis (2023). 2024 continues the trend of rulings that pose grave threats to our democracy.
Trump v. United States
In a baffling decision, a divided Supreme Court ruled that former presidents can never be prosecuted for actions relating to the core powers of their office, and that there is at least a presumption that they have immunity for their official acts more broadly. No such immunity is provided in the text of the constitution itself.
Writing for the party-line majority, Chief Justice Roberts says that “the president is not above the law.” However, this is difficult to square with the expansive way the Court chose to define “official acts.” The majority took the view that a president’s “official responsibilities…cover actions so long as they are not manifestly or palpably beyond his authority.” Still more alarmingly, the majority opined that the courts cannot consider the president’s motives when determining official acts, nor can they designate an act as unofficial simply because it allegedly violates the law.
The case now returns to the lower courts, who must determine whether the conduct in the various cases involving the former president is “official” or “private acts.” In practice, the decision creates a sufficient delay that the former president’s trials are unlikely to be resolved before the election, creating a practical barrier to holding a president accountable for even flagrant, public criminal activity.
Loper Bright v. Raimondo
The Supreme Court also held that the Administrative Procedure Act requires courts to decide whether an agency has acted within its statutory authority. It overruled the deference traditionally extended to agencies through Chevron v. Natural Resources Defense Council.
Under the traditional Chevron doctrine, courts were required to uphold an agency’s reasonable interpretation of a statute if Congress has not directly addressed the question at the center of a dispute. While the doctrine was not originally regarded as particularly consequential, it has become a pillar of federal administrative law cited by federal courts more than 18,000 times.
Writing for the majority, Chief Justice Roberts argued that Chevron deference is inconsistent with the Administrative Procedure Act, a federal law that establishes the procedures that federal agencies must follow and sets guidelines for courts that review agency actions. The APA, Roberts noted, directs courts to “decide legal questions by applying their own judgment” and therefore “makes clear that agency interpretations of statutes — like agency interpretations of the Constitution — are not entitled to deference. Under the APA,” Roberts concluded, “it thus remains the responsibility of the court to decide whether the law means what the agency says.”
Snyder v. United States
Continuing the theme of insulating public officials from legal consequences for criminal activity, the Republican majority also limited the scope of federal anti-bribery law.
In this case, the former mayor of Portage, Indiana, was convicted and sentenced to 21 months in prison for violating a law that bars government officials from “corruptly” accepting “anything of value of any person, intending to be influenced or rewarded” for an official act. In 2014, Snyder received $13,000 from a truck company that was awarded contracts totaling over $1 million for new trash trucks for the city. Snyder maintains that the payment was for consulting services, but federal prosecutors called it an illegal gratuity.
The majority argued that the payment was merely a “gratuity” not a “bribe” because it occurred after the mayor had already directed the contract to the truck company, not before.
An Ethical Cloud
These cases are especially problematic given the limited ability of other branches of government to hold Supreme Court justices in check. They have lifetime appointments except under extremely limited circumstances and can be removed from office only through impeachment by the House of Representatives and conviction by the Senate, which is functionally impossible in recent years.
Supreme Court Justices are the only members of the federal judiciary not covered by a binding code of conduct or subject to the complaint and discipline requirements that apply to other federal judges under the Judicial Conduct and Disability Act of 1980.
While the Justices are, in theory, subject to statutory requirements regarding financial disclosures and recusal over a conflict of interest, there continues to be questionable conduct and refusals to recuse themselves during clear conflicts. For instance, Justice Alito’s wife flew “Stop the Steal” flags on their property prior to the 2021 inauguration, but he claimed that because they were his wife’s flags, he was not obligated to recuse himself since he had not personally flown them. Similarly, Justice Thomas remained silent regarding his wife’s clear involvement in efforts to prevent Biden from taking office.
A court that answers to no one, that is unwilling or unable to acknowledge the radical politically-motivated approaches they have taken and that could only be kept somewhat in check by a unified majority in the House and Senate poses a grave threat – not just to our individual freedoms, but to the integrity of the United States legal system itself.
The Power of Your Vote
All of this means that it’s more important than ever to vote this November. The future of the Supreme Court and any chance escaping a far-right, anti-public education supermajority depends on your vote for President.
If you want to see a Supreme Court that will protect voting, civil, reproductive and labor rights, then it is vital to elect a president who will nominate judges who will safeguard these rights, and elect members of Congress willing to hold justices accountable. By 2025, four of the nine Supreme Court justices will be over 70 years old. The next President may get to nominate as many as four new justices, which will shape the trajectory of the Court for the next generation. We cannot afford to let the highest court in our nation continue to undermine the rule of law, civil liberties and effective functioning of government.
