The Supreme Court’s latest term—with blockbuster decisions on abortion, the Second Amendment, presidential immunity and more—highlights a looming crisis of legitimacy.
This article appears in the Fall 2024 issue of Ms., which hits newsstands Sept. 24. Join the Ms. community today and you’ll get issues delivered straight to your mailbox.
On July 29, President Joe Biden announced what the White House describes as a “bold plan” to reform the Supreme Court and “ensure no president is above the law.”
The plan was released four weeks after the chilling conclusion to the Supreme Court’s recent term, which some legal scholars, analysts and even former federal judges described as brazen and corrupt.
For the first time in its history, the Court issued a ruling explaining that while federal law prohibits bribes to officials, it is not a crime if the payment was a “gratuity” for a past act. In that 6-3 decision authored by Justice Brett Kavanaugh, the Court’s conservative majority overturned a federal bribery conviction by a lower court and worryingly legitimized inducements to elected officials as long as the payment comes after the act.
This was the result in Snyder v. United States, in which the Court vacated the bribery conviction of James Snyder, a former Republican mayor in Indiana, who was found guilty of taking a $13,000 bribe in exchange for steering $1.1 million in city contracts to a trucking company. According to Kavanaugh, “Some gratuities can be problematic,” but “others are commonplace and might be innocuous.” In a sharply worded dissenting opinion joined by Justices Elena Kagan and Sonia Sotomayor, Justice Ketanji Brown Jackson wrote, “Officials who use their public positions for private gain threaten the integrity of our most important institutions.”
Her insightful admonishment in Snyder that “greed makes governments—at every level—less responsive, less efficient, and less trustworthy from the perspective of the communities they serve” could also be interpreted as a warning to the Court.
In the chaos of blockbuster decisions addressing agency authority, abortion, federal preemption, whether unhoused people may be criminalized, the Second Amendment and more, news organizations reported on justices receiving luxury vacations, gifts and other undisclosed financial benefits. These reports followed a ProPublica investigation one year prior, which revealed that “for over 20 years, Supreme Court Justice Clarence Thomas has been treated to luxury vacations by billionaire Republican donor Harlan Crow.”
The ruling in Snyder and the Biden administration’s plan for Supreme Court reform follow a troubling term—one that underscores claims that the Court’s recent decisions reflect politically based determinations, particularly in the matter of presidential criminal immunity. As such, it is almost impossible to evaluate the Court’s opinions without at least acknowledging the concerns of the American public that the Court itself has become less trustworthy.
Trump’s Influence on Conservative Justices
The highly respected retired conservative federal Judge J. Michael Luttig wrote on X, “The Supreme Court cut the heart and soul out of America’s Democracy and Rule of Law” with its decision in Trump v. United States.
In that case, the Court considered whether a former U.S. president is entitled to absolute immunity from criminal prosecution and punishment for actions “performed within the outer perimeter of his official duties.” The case, brought by the Department of Justice and argued by special counsel Jack Smith, builds from allegations that the former president’s actions on Jan. 6, 2021, violated federal laws.
Trump and his legal team appealed rulings by the D.C. Circuit Court of Appeals and a lower court that a president may be criminally prosecuted for unlawful acts, specifically his attempts to overturn the 2020 presidential election. But in a 6-3 decision, the Supreme Court overruled these decisions, leading Luttig to assert, “No longer can it be said that in America no man is above the law, because on that day, the Supreme Court held that the President of the United States—and in particular the former president of the United States—actually is above the law.”
Trump v. United States obscured an equally important decision involving the January 6 insurrection, Trump v. Anderson. In the latter case, the Court addressed whether Section 3 of the 14th Amendment disqualified Trump from appearing on Colorado’s 2024 presidential ballot for committing insurrection against the government. According to the Supreme Court, even though states may disqualify state officials from elections, they lack the power to enforce Section 3 against federal candidates. A victory for Trump, the case underscored serious tensions around the former president’s broad influence with conservative justices.
Judicial Hubris and Overturning Chevron
In an analysis of the Court term for Democracy Docket, Keith Thirion of Alliance for Justice concludes, “If you don’t already have money and power, the current Supreme Court majority doesn’t care about you.”
Consider the consolidated cases Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce, in which the Court overturned the Chevron doctrine, a 40-year precedent requiring courts to defer to federal agencies’ interpretation of ambiguous statutes. In a 6-3 decision along ideological lines, the Court upended a fundamental process in administrative law, essentially finding that judges have as much expertise as the learned scientists, doctors and experts who work for and advise agencies like the Environmental Protection Agency, the Food and Drug Administration or the Department of Health and Human Services.
In her dissenting opinion, Kagan wrote that the majority’s decision reflected “judicial hubris”—or as Thirion puts it, “the Court stole power away from the experts to hoard it for itself.” Imagine what this means for cases involving polluted water and air caused by negligent manufacturers. Consider the implications for future cases related to agency approval for contraceptives, medication abortion or future drug therapies that assist with infertility. There will be times—many, quite possibly—when judges and justices, without the benefit of expertise, will make mistakes.
We’ve seen previews of what awaits us. In Burwell v. Hobby Lobby, a 2014 split decision authored by Justice Samuel Alito, the Court conflated contraception, like intrauterine devices (IUDs), with abortifacients. And Mark Joseph Stern, a senior writer at Slate, noted that in Justice Neil Gorsuch’s opinion in Ohio v. EPA, Gorsuch “confused nitrogen oxide (a pollutant) with nitrous oxide (laughing gas),” doing so “five times, never once getting it right—in an opinion overruling the EPA’s own expert scientific analysis!”
Race and Politics
Under Chief Justice John Roberts, the Court’s tolerance toward matters of race discrimination and voter suppression predate the latest term, in which it ruled 6-3 in Alexander v. South Carolina State Conference of the NAACP that the state’s gerrymandered maps—drawn by South Carolina’s Republican-controlled Legislature—were not necessarily racially discriminatory, even though they shifted a sizable proportion of Black voters from one district to another, significantly diluting their votes.
According to Alito, “the Court starts with a presumption that the legislature acted in good faith” and admonished that the lower court failed to “disentangle race and politics.” The Court reversed the district court’s finding of race discrimination and remanded the case back to the lower court. After the Court’s term ended, the South Carolina State Conference of the NAACP withdrew its lawsuit.
The Court’s Recent Opinions
As the Court’s term came to an end, other troubling opinions were released. Even though an 8-1 majority ruled in United States v. Rahimi that anyone subject to a domestic violence restraining order could be stripped of their right to own a gun, a week earlier in Garland v. Cargill, the Court struck down a ban on bump stocks, which convert semiautomatic weapons into even deadlier machinery.
The Court held that the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its statutory authority when it issued a rule classifying a bump stock as a machine gun—“because it cannot fire more than one shot ‘by a single function of the trigger,’” Thomas wrote in his decision, even as he acknowledged that the mechanism still shoots 400 to 800 rounds per minute.
Mifepristone, EMTALA and Delay Tactics
Perhaps the most anticipated cases of the term involved abortion rights. In both instances the Court punted, postponing its rulings until after the election. In FDA v. Alliance for Hippocratic Medicine, the Court concluded that the plaintiffs who sought to remove mifepristone from the market lacked standing, thus ending the case. The lawsuit was originally brought in Amarillo, Texas, before Judge Matthew Kacsmaryk, a Trump-appointed jurist whose antiabortion activism, writings and advocacy are well known.
In his district court ruling, Kacsmaryk found in favor of the plaintiffs, a group of antiabortion doctors and dentists whose debunked claims included that mifepristone is unsafe and ineffective, and was rushed through the approval process by the FDA in 2000. Despite the Court’s decision, legal threats to abortion medication will likely continue, particularly in light of the justices’ ruling dismantling agency authority.
Moreover, during oral arguments Alito pondered whether the FDA is obliged to consider the “application” of an 1873 law—the Comstock Act—when it regulates mifepristone. The Comstock Act, a Victorian-era, anti-obscenity law that banned the mailing of contraceptives and abortifacients, is the tool some conservative lawmakers and judges are counting on to further dismantle abortion rights and constrain access to contraceptives.
On the one hand, the Court’s FDA ruling preserved nationwide access to mifepristone, one of the two drugs commonly used in a medication abortion—the number of which have risen 10 percent since the Dobbs decision. On the other hand, the case remains an alarming reminder of the fallacies in Dobbs, including its assertion that abortion regulation would remain a matter for the states.
As the Court concluded its term with Idaho and Moyle v. United States, the bottom had been reached. In that case, the Court considered whether the Emergency Medical Treatment and Labor Act (EMTALA), a federal law, preempts Idaho’s highly restrictive abortion ban. Typically, federal laws have priority over state laws, but in the realm of abortion bans, Republican-led legislatures have thrown that principle to the wind.
In this case, the Biden Administration argued that EMTALA—which protects patients by mandating that hospitals receiving Medicare funds provide stabilizing care regardless of the health condition or costs—supersedes Idaho’s abortion ban. As the case made its way through the courts and the ban remained in effect, Idaho doctors, fearful of criminal prosecution and civil fines, began air-lifting their patients to other states for lifesaving care.
Rather than addressing the substantive matter in the case, the Court ruled that its review was improvidently granted, returning the matter to the 9th U.S. Circuit Court of Appeals. In a partial dissent, Jackson noted that her colleagues “had a chance to bring clarity and certainty to this tragic situation, and we have squandered it.”
Long gone is an era in which the Court boldly exhibited its commitments to the Constitution, nonpartisan judicial review, and the pursuit of striking down sex and race discriminatory laws. Instead, the Court stands in the shadow of partisanship that is hard to ignore.
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