The Supreme Court’s Extreme Majority Risks Turning Back the Clock on Decades of Progress and Undermining Our Democracy – Center For American Progress
June 13, 2022
As the Supreme Court nears the end of its term, it is poised to hand down a string of decisions that carry a deeply disturbing theme. Much attention has appropriately been given to the stunning draft decision reported on Dobbs v. Jackson Women’s Health Organization, which would overturn Roe v. Wade. Yet in other cases, too, Americans will likely see significant retrenchments of their rights, including those to clean air, religious freedom, effective governance, and to live safe from the scourge of gun violence. Dobbs will not be an isolated case of overreach nor of attacks on cherished liberties. Instead, it offers a stark preview of the plans the court’s radical majority has for the future.
Simply put, the current majority on the court is anything but conservative. These unelected justices—who, as recently as two years ago, promised to respect foundational Supreme Court precedents—are advancing their own extreme ideological vision that is out of step with most Americans. This will quite literally turn back the clock on our nation’s hard-fought progress. It should not go unnoticed that this is the first full term in which all three justices nominated by President Donald Trump are sitting together.* After decades of a more or less stable and relatively balanced—if conservative—membership, the court’s actions this term are the direct outcome of MAGA policies and tactics to wrest control of the Supreme Court at any cost. These actions lead one to wonder, as Transportation Secretary Pete Buttigieg recently asked, if we are seeing “the high-water mark of rights and freedoms in this country” before these civil rights are rescinded.
The Supreme Court’s path to expanding individual rights has not always been a straight line. Ample evidence exists of the court siding with prejudice or powerful actors over the people, before its missteps were corrected at a later date. Dred Scott v. Sanford held that African Americans were not to be recognized as citizens. Nearly a century later, Korematsu v. United States upheld the forced internment of Japanese Americans. Plessy v. Ferguson blessed state segregation laws as legal under the infamous “separate but equal” doctrine. And Lochner v. New York invalidated a state law regulating acceptable working conditions under a contract. Today, the original, flawed findings would prove shocking and unacceptable to most Americans. Fortunately, in each of these cases, the Supreme Court—or, in one case, a constitutional amendment—expanded our notion of the rights guaranteed in our society.
As the Supreme Court nears the end of its term, it is poised to hand down a string of decisions that carry a deeply disturbing theme: the reversal of long-standing precedents and law that will claw back the rights of Americans in a way unseen in modern times.
What is different about the Supreme Court’s hard pivot in this term is that, in each case, the court may seek to reopen and undermine precedents, compromises, or laws that have long since been settled and safeguarded the rights of everyday people. Beyond the most direct effect of harming Americans and their rights, this extremist brand of judicial activism has also eroded trust in the Supreme Court as a critical national institution. Although there are no quick solutions, there are three potential actions that may help protect our democracy:
First, the current majority on the Supreme Court must recognize that its continued radical activism has the potential to destabilize its very institution and the broad respect granted to it and its decisions by the populace—and show restraint.
Second, Congress must consider significant reforms to the court including term limits, new binding ethical restrictions, increased transparency, and fast-track procedures to ensure open seats do not go unfilled for political or ideological reasons.
Third, Congress and executive branch agencies must write laws and regulations in a way that accounts for the court’s activism in order to avoid improper intrusion by the court in these laws’ appropriate implementation.
For sure, none of these solutions will have the immediate impact of repairing the significant damage likely to be caused by the Supreme Court’s majority in the coming days. But any effective response most basically necessitates understanding the undeniable throughline that connects these cases—and what it suggests about the direction of the court.
Taking a look at five cases awaiting decision this month—and the court’s likely trajectory in resolving them—demonstrates the lengths to which its majority will go in reversing long-standing precedents and laws to achieve their ideological aims.
Dobbs v. Jackson Women’s Health Organization
While Dobbs v. Jackson ostensibly questions the constitutionality of a Mississippi law banning almost all abortion after 15 weeks, the state has directly requested the court to use the case as a vehicle to overturn Roe v. Wade in full. The Dobbs case catapulted into national headlines in early May when Politicoreleased a draft of the Supreme Court’s decision on the case, revealing an audacious holding that would fully overturn the nearly half-century long precedent of Roe v. Wade and the 30-year-long precedent of Planned Parenthood of Southeastern Pennsylvania v. Casey.
If the draft as leaked is finalized and Roe is fully reversed—or even if the Mississippi law is more narrowly upheld in contravention of the precedents set out in Roe and Planned Parenthood—it would be a quintessential example of extreme judicial activism, spurred by the appointment of Trump-era justices who now constitute the bulk of the court’s extreme-right majority. It would upend nearly 50 years of settled law, with multiple justices reversing course after having attested in their nomination hearings that Roe v. Wade was “an important precedent” and subject to the principle of “stare decisis” (the court’s doctrine to show strong deference to past decisions). In one decision, millions of Americans would lose their constitutional right to safe and accessible abortion. Meanwhile, more than half of states are poised to ban abortion if Roe falls, including the 13 states ready to carry out near-complete abortion bans under “trigger laws” designed to become effective once Roe is overturned as well as the additional states with extreme bans still in state code passed before Roe. Under many of these schemes, abortion procedures performed in violation of the state’s ban would be a felony—and some abortion providers could face life in prison. The vast majority do not include exceptions for rape or incest, and some do not even explicitly allow for abortion care to save the life of a patient.
The overturning of Roecould also pave a path for a future anti-abortion Congress to enact a federal ban on abortion.
New York State Rifle & Pistol Association Inc. v. Bruen
In New York State Rifle & Pistol Association Inc. v. Bruen, the court is considering whether to overturn a 108-year-old gun licensing law in the state of New York that requires individuals to demonstrate “proper cause” to obtain a concealed carry permit. Under the law, proper cause is defined as a special need for self-defense that surpasses an applicant’s general desire to protect themselves or their property. Two individuals who were denied an unrestricted concealed carry license for failing to meet the “proper cause” requirement have partnered with the National Rifle Association’s New York affiliate in filing a suit, claiming that this law violates their Second Amendment rights. These claims come despite the fact that the two individuals were given license to carry their concealed handguns for hunting, target practices, and in general areas not “frequented by the general public,” and one of the plaintiffs was even granted license to carry during transit to and from work.
The ramifications of this case are brought into sharp relief by the multiple recent mass shootings that have senselessly taken the lives of innocent Americans. As President Joe Biden calls on Congress to pass laws protecting Americans from gun violence and a bipartisan group of senators actively searches for compromise reform, the Supreme Court’s extreme majority seems poised to roll back the limited protections that do exist in some states. This will have a real impact. New York, for example, has some of the strongest gun laws in the nation, and as a result, it has some of the lowest rates of gun violence in the country. Yet, during oral arguments for the case, the court’s right-wing justices seemed sympathetic to the plaintiff’s case and skeptical of the New York law. To date, the Supreme Court has never ruled that the Second Amendment guarantees an individual’s right to carry a concealed weapon outside of their home. If the court extends the current interpretation of the Second Amendment to include a constitutional right to carry guns outside of the home, and rules that a 108-year old New York law is unconstitutional, this would undercut long-standing gun-safety measures not only in New York, but in multiple states across the country with similar statutes.
American Hospital Association v. Becerra
This case addresses the authority of the U.S. Department of Health and Human Services (HHS) to reduce reimbursement rates for certain hospitals and questions whether the issue is even subject to judicial review. A section of the Social Security Act pertaining to hospitals’ reimbursement for outpatient drugs suggests that reimbursement rates can be tied to acquisition cost. In 2018, HHS reduced the reimbursement rate for hospitals that were able to obtain covered drugs for a reduced cost. American Hospital Association v. Becerra considers whether HHS has the authority to make such a decision absent a formal survey of acquisition costs, which is not explicitly required under the law passed by Congress.
This case is about much more than just whether hospitals are overpaid by the government for the drugs they buy and administer to patients. While considering this case, some conservative justices suggested undermining so-called Chevron deference. For nearly 40 years, the courts have routinely deferred to agency experts in interpreting statutory language that they will ultimately administer. This principle, known as Chevron deference, was laid out by the court in its 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. and strengthened earlier precedents that also showed deference to agency expertise. For example, this means that judges have shown restraint in substituting their own views for agencies’ expert judgement on costs and benefits or interpretation of ambiguous provisions in a statute when they promulgate regulations.
Thus, any ruling that reverses or undermines Chevron could have significant implications on the ability of government agencies to administer laws passed by Congress, using their industry-specific expertise. This is another instance in which an activist conservative majority may issue a ruling that goes far beyond the case at hand. In this case, the court may undermine long-standing precedent by reaching beyond its constitutional jurisdiction as mere arbiters of the law and, instead, inserting itself into the realm of executing it.
West Virginia v. EPA
In West Virginia v. EPA the court is questioning whether new limits should be imposed on the Environmental Protection Agency’s (EPA) authority—under the Clean Air Act of 1970—to protect the public from greenhouse gas emissions from power plants. At issue are two rules: the Obama administration’s Clean Power Plan rule, which a number of states sued to block in 2015, and the much weaker Affordable Clean Energy (ACE) rule, with which the Trump Administration replaced it. The Clean Power Plan used broader measures to reduce power plant carbon emissions, which account for 25 percent of U.S. emissions causing climate change. The ACE rule, which replaced it, imposed weaker measures that were limited solely to the physical premises of power plants (described as “inside the fence line”), yet was subsequently struck down by the D.C. Circuit Court. Early in its first year, the Biden administration stated its plans to issue its own new rule—effectively mooting this legal challenge on the past rules that never took effect and never will. The fact that the court has gone out of its way to rule on a theoretical case tied to no existing regulation is an improper exercise of judicial power. The courts historically have not made rulings on nonexistent or potential regulations. If the court were to give an opinion in this case, they would be pushing beyond the long-standing norms of the federal judiciary to only consider final agency actions—and revealing the activist majority’s interest to proactively intrude in policymaking rather than to just “call balls and strikes.”
Similar to American Hospital Association v. Bacerra, it is troubling that this case could have the broad impact of hobbling the activity of the federal government to implement laws passed by Congress. Within the past few years, an activist majority increasingly hostile to regulation has sought to erodeChevron deference, suggesting in 2015 that it did not extend to questions of “deep economic and political significance” without explicit congressional intent for an agency to make these decisions. This new exception to granting deference—referred to as the “major questions doctrine”—has become a defining issue in the West Virginia v. EPA case. West Virginia argues that the Clean Air Act does not give the EPA explicit authority for such broad regulations on power plants, and that such decision-making is a matter of vast economic significance. As such, the state argues that the major questions doctrine should be applied.
In this case, the court may undermine long-standing precedent by reaching beyond its constitutional jurisdiction as mere arbiters of the law and, instead, inserting itself into the realm of executing it.
What is especially troubling about this emerging major questions doctrine is that most U.S. laws were written and passed long before any such articulation—effectively undermining, in many cases, Congress’ intent when they wrote those laws.
If the court goes out of its way to reinterpret long-standing statute when no actual regulation is at question—or, in addition, applies the major questions doctrine to effectively rewrite the agency’s responsibility under the law—there could be significant implications not just for the EPA’s ability to implement the Clean Air Act but also for all executive agencies. It would single-handedly weaken the ability of the federal government to protect clean air and water; consumers; patients; and civil rights. Furthermore, it would effectively replace the executive branch—accountable to voters via presidential elections—with unelected judges in decisions about how our laws should be carried out.
Carson v. Makin
Carson v. Makin pertains to a 150 year-old government program in the state of Maine aimed at ensuring access to free education for all children. Under this program, children who do not live near any public secondary schools may obtain tuition funds to attend a private school, as long as that private school is “non-sectarian.” Some parents tried using the state’s tuition assistance programs to fund their children’s education in religious high schools. However, the state denied their requests as these high schools do not meet the program’s “non-sectarian” stipulation. In response, these parents filed a suit against the state of Maine for violations of their First Amendment rights to religious liberty.
This case is fundamentally about the foundational principle of separation of church and state, enshrined through the Establishment Clause that opens the First Amendment. The Supreme Court has long held that this clause prohibits the use of state government funds for religious activities or purposes. For example, in 2004, the court in Locke v. Davey held that state scholarship funds could not be used to fund religious training and instruction. In more recent years, as the court’s majority has become more radical, this principle has been rolled back. In 2020, after two Trump-appointed justices were confirmed to the bench, the Supreme Court’s majority ruled in Espinoza v. Montana Department of Revenue that a state scholarship program must permit its funds to be used for attendance at religious schools if said funds could be used for attendance at nonreligious private schools. That decision was silent on whether state funds could directly support religious instruction yet, even so, effectively reversed Locke, which Justice Stephen Breyer noted should have controlled. In Carson v. Makin, however, the court seems primed to go much further in allowing public dollars to directly support religious purposes—and, hence, endanger fundamental religious freedom in an increasingly pluralistic nation.
With democracy itself under attack, we need a trusted arbiter more than ever to resolve disputes neutrally under the law and without ideological agenda. Yet that is not the direction this right-wing majority is following. If it pushes forward with the activist decisions described above, these cases will only be the start. The court has already announced it will hear blockbuster cases related to affirmative action, voting rights, and further challenges to federal agencies’ ability to implement our laws. These are areas with clear, established precedents and laws—and they are now in the crosshairs of an extreme majority itching to turn back the clock on them.
Over the past few years, political actors have taken steps to politicize the Supreme Court. This can be seen through the hypocrisy of failing to hold a vote on the nomination of then-Judge Merrick Garland months before a presidential election yet fast-tracking the nomination and confirmation of Justice Amy Coney Barrett just days before another presidential election. Justices on the court have also invited criticism of this politicization, with news reports that Justice Thomas failed to recuse himself in cases surrounding the 2020 presidential election, despite evidence of his wife’s significant involvement in advancing strategies related to spurious court challenges by the Trump campaign.
Hence, rebuilding broad trust in the Supreme Court, and its role in acting as a neutral arbiter in resolving constitutional disputes, requires steps toward its depoliticization. That must start at the court’s own doorstep. All its justices—including those in its radical majority—must engage in self-reflection to determine if ideological goals are worth erosion of the court’s perception and legitimacy in the eyes of the public. If they are not, then the kind of judicial restraint espoused by Judge Ketanji Brown Jackson in her confirmation hearings may be a needed dose of medicine for her future peers. Such a pledge should also be paired with new binding and enforceable ethics restrictions on sitting justices and increased transparency into the court’s workings. These could even include new scrutiny on the court’s use of its “shadow docket” to decide cases without full briefings and argument.
The Center for American Progress has also previously written on the need for Supreme Court term limits. The significantly lengthened average tenure of a Supreme Court justice has both endowed nine individuals with more power than the framers of the Constitution had intended, and it has caused vacancies to be rarer and less regular. The consequence has been “winner-take-all” confirmation processes that are far more political and impactful than in the past. To remedy this, Congress could pass an 18-year term limit on Supreme Court justices’ active service in hearing and voting in the court’s cases. At the conclusion of their term, justices could continue their work and compensation in senior status. This approach would grant each president the ability to regularly nominate two Supreme Court justices per 4-year term—dialing down the heat some on these selections. As part of any such reform, Congress should also consider the benefits and risks of creating new fast-track procedures—such as those employed under the Congressional Review Act—to ensure an up-or-down vote on nominees to the court (even when the president and Senate majority are of opposite parties).
Finally, barring reforms to the court or nominations to its bench, Congress and executive branch agencies must preserve the ability of government to make meaningful improvement to the lives of Americans. This will mean anticipating the hostility of the current majority toward regulation and writing laws and agency rules in ways that harden them to the court’s activism.
America’s national success has been predicated on its constitutionally protected freedoms, separated branches of government, democratic norms, and stable legal system. To ensure the continuation of that success, we cannot allow this moment in history to be a high-water mark for rights and freedoms. That will take the buy-in of all three branches of government and smart action in order to depoliticize the Supreme Court.
*Authors’ note: Justice Amy Coney Barrett joined partway through the 2020–2021 term after her Senate confirmation.