How the Supreme Court Keeps Getting Away With It

Dahlia Lithwick and Mark Joseph Stern / Slate
How the Supreme Court Keeps Getting Away With It The story being told is the one Chief Justice John Roberts would probably like to have you tell. (photo: Alex Wong/

As the Supreme Court term crashed to a close last week, in a string of stinging defeats to progressives, a familiar narrative began shaping up in the public discourse: The court had, on balance, remained largely loyal to the conservative legal project while delivering just enough compromises to quell any meaningful challenge to its power and legitimacy. That story is the one Chief Justice John Roberts would probably like to have you tell; it is both descriptively accurate and superficial to the point of distortion. The court did, indeed, refuse an invitation to clobber several liberal precedents and policies, which had the effect of leaving the law in place, a set of status quo decisions dressed up as liberal “wins.” It then used the resulting good press as cover to pulverize laws that directly improved the lives of tens of millions of Americans, including the most vulnerable and underprivileged among us. And it achieved these goals largely through the invisible hand of docket manipulation, a trick that’s unique to the modern Supreme Court.

What does that all mean? Nothing too lofty. Justices Brett Kavanaugh and Amy Coney Barrett have finally embraced the chief justice’s tried-and-true formula of years past, joining a series of decisions rebuffing some of the most radical Republicans’ most cynical efforts to yank the law far rightward. The sloppiest, least defensible big swings—pushed by Alabama, Texas, and North Carolina—were rebuffed. Slightly less sloppy big swings were embraced joyfully and written into law, including a case that had no facts and a case that ignored the record below. In swinging at only some of the worst pitches served up, Barrett, Kavanaugh, and the chief justice got a chance to tick off a bunch of policy agenda items that are too unpopular and misery-inducing to pass via the democratic process. After last term’s eruption of molten, cruel conservatism, the 6–3 majority has sought safer political ground without sacrificing any of its most cherished goals.

To see why this term was not some kind of triumph for moderation, consider the decisions that commentators have deemed huge victories for the left. Moore v. Harper simply rejected the independent-state-legislature doctrine, a fringe theory that was rendered toxic by its central role in Donald Trump’s failed coup; at the same time, the court awarded itself ongoing authority to rein in any state courts that it deems to have gone “too far” in protecting democracy, codifying a minority viewpoint into law. United States v. Texas merely put a new limit on the outrageous collusion between red states and a clutch of rogue Trump judges eager to seize control over immigration enforcement. Haaland v. Brackeen followed precedents reaching back two centuries in upholding Congress’ power to protect Native people; even then, it left the door open to future legal attacks on Indigenous rights. Merrill v. Milligan affirmed an interpretation of the Voting Rights Act that has stood for nearly four decades and imposes moderate limits on racial gerrymanders. It was arguably the one clear-cut “liberal” victory of the term, and that’s only because the protection of voting rights has now become coded as an exclusively liberal concern. Even that “win” came only after the court left an illegal gerrymander in place for the 2022 midterms, and after years of attacks on Section 2 of the Voting Rights Act that left it much weaker than it used to be.

Now consider this term’s victories for the right. Biden v. Nebraska abolished a program that would’ve forgiven $430 billion in student debt for 43 million borrowers by concocting a self-contradictory theory of standing then relying on a “major questions doctrine” that isn’t a real doctrine. 303 Creative v. Elenis gave for-profit companies a First Amendment right to discriminate against LGBTQ+ people for the first time ever. Students for Fair Admissions put an end to race-based affirmative action in higher education as we know it. Jones v. Hendrix condemned innocent people to languish in prison under illegal sentences through no fault of their own. Sackett v. EPA revoked federal protection over millions of acres of wetlands in a grievous blow to the Clean Water Act that will devastate sensitive ecosystems, endangered species, flood control, and drinking water. These decisions were interspersed with smaller conservative rulings that promoted key tenets of the conservative legal project, including one that offered an existential threat to unions’ right to strike and yet another favor to corporations that seek to dodge lawsuits.

With the exception of Milligan, the Supreme Court chose to hear every single case mentioned above. That might sound unremarkable; from a historical perspective, however, it is deeply aberrant. For most of the court’s history, Congress exerted extensive control over the high court’s docket, dictating which cases it had to hear as well as those cases it couldn’t. As professor Steve Vladeck documents in his new book The Shadow Docket, this power served as a vital check on the judiciary—one Congress abandoned only in recent decades in favor of awarding the justices near-total discretion over its caseload. (A rare vestige of this regime still compels the court to hear certain voting rights decisions, which is why it had no choice but to hear Milligan.)

As a result of this discretion, the court has granted itself a singular role in crafting the narrative of each term. It could have declined to take up Moore v. Harper, which was decided in accordance with the law by the court below. But by granting the case, the court built up months of totally unnecessary national tension and uncertainty, followed by a sense of relief that it hadn’t done something so unprecedented as to be crazy. Each time the court reaches out to take a fringe-theory case, commentators who score the refusal to adopt a fringe theory are carrying the court’s water. By batting away fringe cases like Moore, Brackeen, or Milligan, the majority gave itself maneuvering room for a decision like 303 Creative, a manufactured case with fake facts and no real record, which the majority nonetheless used as a vehicle to roll back Civil Rights laws. Just as you cannot weight every merits case equally and call it “data,” you cannot give the court a participation award every time it grants and then does not rubber-stamp a baseless case.

And the majority is already setting the stage for next term. After dropping its last decisions on Friday, the court released its final orders list. Over liberal dissents, the majority refused to consider a voter suppression law in Mississippi that was explicitly designed to “exclude the negro” from the political process. It also turned away a case challenging a Mississippi prosecutor’s use of strikes to keep Black citizens off the jury in the capital trial of a Black defendant. Milligan, it seems, represented quite enough racial justice for the 2020s.

Next term, the high court has agreed to decide whether the Chevron doctrine still requires judicial deference to federal agencies’ interpretation of ambiguous statutes, and whether a federal law prohibiting individuals from “possessing a firearm while under a domestic violence restraining order” is unconstitutional. If we assess the next term based only on the 60-some merits decisions the court will make, rather than what happens on the emergency orders docket, we will miss a significant portion of its action. And if we continue to assess those 60-some cases as “wins” or “ties” without accounting for why the court agreed to hear these cases at all, we are evaluating a data set that was crafted to seem moderate, when it is in fact unthinkable. Calling Barrett and Kavanaugh centrists because they have cottoned on to the net benefit—long understood by the shrewd, if disingenuous, chief justice—of forever shifting the Overton window while calling the occasional staggeringly radical appeal “too much” is credulous and myopic. This is a checkerboard constructed on its own terms, paid for by revanchist billionaires, and we keep trying to stretch the rules of the game to cover it.

The last days of June 2023 ensured that millions of people will suffer—whether it be minority applicants to higher education, LGBTQ+ families seeking equal access to the marketplace, student borrowers attempting to unbury themselves from ruinous debt, innocent people locked up under illegal sentences, or Americans who will lose access to clean water.

And who benefited from all this? Certainly not the rule of law, or the canons of statutory construction or constitutional interpretation. Probably not the white family that believes that the world is now “fair” because their kid will get into Harvard (she won’t) or the business owner who wants to be allowed to discriminate because they are bespoke pretzel artists now. The only beneficiaries of this small, mean-spirited end of term are the justices who are being lauded for tacking toward the center through judicious moderation. None of that is in evidence. Not at all. How this conservative supermajority selects and decides cases is up to them. How we choose to classify and understand all that is still up to us.

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