The Supreme Court Has Planned for a June So Awful It Will Be Impossible to Keep Up

Mark Joseph Stern / Slate
The Supreme Court Has Planned for a June So Awful It Will Be Impossible to Keep Up Justice Brett Kavanaugh and Chief Justice John Roberts. (photo: Getty Images)

The Supreme Court is about to drown us in a deluge of explosive and massively consequential decisions involving some of the most controversial issues of the day. Right now, the justices are scrambling to complete blockbusters involving abortion, guns, homelessness, unions, social media, online disinformation, pollution, the administrative state—and, oh yes, hundreds of Jan. 6 prosecutions, including Donald Trump’s. Yet at the moment, there’s a logjam: The court, which likes to wrap up decisions by the end of June, is way behind schedule, releasing just a trickle of minor cases several weeks in a row. Even if it stretches into early July this year, SCOTUS has teed up a chaotic finale to the term. As soon as the current logjam breaks, the court will dump everything on us all at once.

This approach to judging—to ruling, really, in the monarchical sense—is both disgraceful and unnecessary. It’s disgraceful because regular people cannot possibly absorb the enormous amount of material that is poised to gush out of the court, as the justices surely know, much of it dressed up in legalese to obscure its meaning for nonlawyers. The overwhelming majority of Americans will have no hope of keeping up with the sweeping and complex decisions to come, even if those decisions have direct and negative impacts on their lives. And this inundation is unnecessary because the justices pick their own arbitrary deadline, then fail to manage the docket in a way that allows them to meet that deadline without cutting corners and overwhelming the news cycle with a glut of last-minute bombshells. The conservative supermajority has a checklist to clear, and it won’t temper its agenda to accommodate for a (gratuitously) tight timeline. Its smash-and-grab attitude toward the law requires aggressive, immediate intervention in cases that the court has no good reason to hear. And so this June, and maybe July, is shaping up to be an unprecedented season of ceaseless SCOTUS mayhem.

A glimpse at the term’s remaining cases shows what a nightmare we’re in for. The justices are preparing to hand down roughly 14 extraordinarily high-profile opinions, triple or quadruple the number of an ordinary term. A decade ago, June’s biggest decision was Burwell v. Hobby Lobby, allowing corporations to limit contraceptive coverage for employees; this year, there are at least a half-dozen cases that stand to eclipse Hobby Lobby in terms of impact and controversy. (Maybe a lot more, depending on how far the supermajority swings right.)

The problem, as Georgetown Law professor Steve Vladeck has explained, is that the Supreme Court has fundamentally altered its approach to granting cases in recent years. It used to be that the justices primarily took up small cases to clarify muddled areas of law, topped off with a handful of blockbusters. Today, they’re taking up fewer and fewer little cases while maxing out on the front-page supernovas. So areas of the law that are important within the legal system but uninteresting to most people, like the Fourth Amendment’s protections against unreasonable search and seizures, remain muddy, because the justices can’t be bothered to deal with them. Meanwhile, the court wades into contentious disputes where it has no business interfering. And big decisions typically provoke longer opinions plus concurrences and dissents, which must circulate for weeks or months as the justices respond to one another. Thus, the docket is smaller than ever, yet the justices say they are as busy as ever, because they can’t help but reach out and grab the shiny toys.

In fairness, there are some major cases that the court can’t avoid. The U.S. Court of Appeals for the 5th Circuit, for instance, keeps jamming the justices with crazy decisions; as the adult in the room, SCOTUS feels an obligation to take up and reverse these rulings. Some attention-grabbers on the docket this term came straight from the Fightin’ 5th Circuit, including decisions limiting access to medication abortion and granting domestic abusers the right to bear arms. There are, however, a ton of other big cases this term that the Supreme Court had zero compelling reasons to take. Why, for example, did the court decide now was the time to let states criminalize homelessness? Or make it harder to halt illegal, union-busting, anti-labor tactics? Or consider whether to preemptively kill a wealth tax, using a dispute built on bogus facts? There was nothing urgent about any of these cases or the underlying issues, no reason the court could not put them off for another day. The conservative justices were, it appears, simply eager to bend the law rightward in each instance and stacked them atop one another in the same overstuffed term to get the job done ASAP.

No cases better illustrate this phenomenon than Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce. Both involve challenges to a federal program that required the fishing industry to share the cost of compliance monitors onboard their vessels. Conservative lawyers developed both as a challenge to Chevron deference, the 40-year-old principle that courts must defer to federal agencies’ reasonable interpretation of ambiguous laws. Overturning Chevron deference would make it harder for presidents to interpret and enforce the law, in turn limiting the government’s ability to protect the public. This power grab is high on the Republican Party’s wishlist because it will kneecap countless regulations that protect us from pollution, fraud, exploitation, discrimination, and other societal ills.

It’s no secret that the Supreme Court’s Republican-aligned bloc is hungry to overrule Chevron. So hungry, in fact, that it initially took up a case from which Justice Ketanji Brown Jackson had to recused, Loper Bright Enterprises. (She participated in an earlier stage while serving on a lower court.) Recognizing, perhaps, that they should not reverse landmark precedent with a short-staffed court, the conservative justices later took up an identical “companion” case, Relentless. They therefore burdened themselves with double the briefing and double the arguments, enlarging their (already heavy) workload. Worse yet, the two cases do not even involve a live dispute. A ruling in favor of the fishing industry will do nothing for the parties. The case is entirely theoretical, a faux-dispute manufactured for the sole purpose of overturning Chevron. And it could not wait till next term: The court had to gobble it up now.

Less wonky but just as egregious is SCOTUS’s intrusion into the Jan. 6 cases. It abruptly decided to jeopardize the prosecution of more than 350 defendants from the Capitol riot by gutting the federal obstruction law under which they’ve been charged. The lower courts reached a near-unanimous consensus that the Justice Department used this law appropriately; the Supreme Court’s intervention was totally unwarranted and may signal broader hostility toward accountability for the insurrectionists. That obstruction law also lies at the heart of special counsel Jack Smith’s indictment of former President Donald Trump for election subversion; eviscerating the statute will eviscerate a key part of the indictment.

Of course, thanks to the Supreme Court, it’s not even clear that Smith will ever prosecute Trump for his alleged crimes relating to Jan. 6. And this sin, too, is partly a story of devious docket management. After the U.S. Court of Appeals for the D.C. Circuit denied Trump’s absurd claim of presidential immunity in February, SCOTUS could (and should) have denied Trump’s appeal. Or it could have quickly, summarily affirmed the D.C. Circuit’s decision. Or it could have taken up the case on the same fast-track schedule it used to keep Trump on the ballot in Colorado. But it didn’t. Rather, the Supreme Court took up the case on a more drawn-out schedule, hearing arguments in late April, with a decision likely in late June. The former president’s arguments in this case are so frivolous that a responsible SCOTUS would have disposed of the whole thing months ago. Instead, the court has treated Trump’s claim as plausible, maybe even persuasive, bogging itself down with a distraction of no merit and monumental importance.

Last month, Vox’s Ian Millhiser made the important point that the right’s evolving approach to judicial nominations has had an immense, underacknowledged impact on the court’s docket. Conservative justices now join the Supreme Court with both a rigid ideology and an agenda toward which they are disinclined to compromise. We all saw this phenomenon play out with the rushed reversal of Roe v. Wade. The impact, though, goes much deeper: It leads to a court that acts much more like a legislative body, picking and choosing which legislation to prioritize, than an impartial judiciary resolving genuine conflicts that come before them. The downstream effects are ugly—but then, why shouldn’t right-wing lawyers engineer phony cases when sympathetic justices are begging for any excuse to rip up precedent, no matter how flimsy the pretext?

As we await the coming torrent of toxic opinions, we should bear this fact in mind: The pile-up of blockbusters did not happen by accident. It is the direct result of a cynical approach to the docket that front-loads the right-wing bloc’s priorities. The court’s composition could change at any time; some conservative justices surely remember when Justice Antonin Scalia died suddenly, denying them a fifth vote in pending cases. And so they flood the zone, never putting off until tomorrow what they could do today. We are about to see the grisly consequences of these tactics. And we will be forced to live with them for long after that.

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