No single day has better captured the current state of the Supreme Court than Thursday. At 10 a.m., the court issued a devastating assault on the Biden administration’s ability to regulate greenhouse gases in a 6–3 ruling joined by all of the court’s reactionary block. Ten minutes later, it issued a 5–4 opinion that just barely confirmed that the president, rather than a rogue judge in Texas, has authority over border policy, with Chief Justice John Roberts and Justice Brett Kavanaugh lending the lone votes preventing an absolutely insane outcome. Shortly thereafter, the court issued a bombshell orders list that tees up, for next term, one of the most important and dangerous democracy cases in American history, which asks whether state legislatures have near-unlimited authority over election laws.
The court’s most immediately lethal decision remains Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. But do not let Dobbs distract from the onslaught that followed it. If anyone still doubted that the Supreme Court served as the nation’s chief policymaking institution after Dobbs, Thursday should put that to rest. The court is ruthlessly efficient, putting our gridlocked Congress to shame with its speedy and definitive resolution of the most pressing issues facing the country today. It does not require hourslong hearings or endless negotiations to operate. The six-justice conservative majority chooses which conflicts to prioritize, takes up cases that present them, then picks a winner, nearly always for the benefit of the conservative movement and the Republican Party.
Consider the issues that SCOTUS has resolved this term—the first full term with a 6–3 conservative supermajority. The constitutional right to abortion: gone. States’ ability to limit guns in public: gone. Tribal sovereignty against state intrusion: gone. Effective constraints around separation of church and state: gone. The bar on prayer in public schools: gone. Effective enforcement of Miranda warnings: gone. The ability to sue violent border agents: gone. The Environmental Protection Agency’s authority to regulate greenhouse gases at power plants: gone. Vast areas of the law, established over the course of decades, washed away by a court over a few months.
There is no serious risk of another branch overriding these decisions. The squabbling among our elected representatives is, increasingly, a sideshow, with the court nudging along the decline of voters’ ability to shape their democracy. One-third of the court was appointed by a president who lost the popular vote, yet the majority evinces not a shred of caution about overriding the democratic branches or its own predecessors on the bench. It imposes Republican policies far more effectively than the Republican Party ever could. Real power in this country no longer lies in the people. It resides at the Supreme Court.
Few cases illustrate this fact better than West Virginia v. EPA. There is no live dispute: West Virginia is a challenge to the Obama administration’s Clean Power Plan, which attempted to regulate carbon emissions at coal-fired power plants, and does not actually exist anymore. SCOTUS halted the plan in 2016 by a 5–4 vote, and the Trump administration later repealed it. Biden’s EPA wants to issue a new and different regulation targeting these emissions. But the Supreme Court’s conservative justices did not want to wait for that regulation, so they decided to strike down the Clean Power Plan now—preemptively hobbling any climate regulations that Biden’s EPA might want to issue in the future.
Chief Justice John Roberts’ 6–3 opinion in West Virginia performs grisly surgery on the Clean Air Act to mutilate one of its key provisions. That law allows the EPA to impose emissions caps using “the best system of emission reduction.” Obama’s EPA believed that the “best system” included shifting power generation away from coal toward cleaner sources, like natural gas or renewables. Biden’s EPA probably would have deployed a similar approach if it had the chance. But it won’t, because Roberts imposed a new limitation on the Clean Air Act: A “system,” he wrote, encompasses only technology at the “regulated source” to make it “operate more cleanly,” like scrubbers on smokestacks. A broader “system” that shifts power generation from dirty to clean energy does not count.
But why? There is no such limitation in the text of the law, which grants the EPA extremely wide latitude to determine the most effective “system” for reducing emissions. So Roberts imposed this extratextual restriction by invoking the “major questions doctrine,” which bars agencies from exercising a “highly consequential power beyond what Congress could reasonably be understood to have granted.” How “consequential” must that power be? Roberts didn’t say. He merely declared that the Clean Power Plan fits this definition, because “Congress had conspicuously and repeatedly declined to enact” such a regulation, and never made “a peep” suggesting it could be done under existing law.
This guidance—if you can even call it that—is calibrated to preserve a maximum amount of leverage for the Supreme Court to simply veto any regulation it dislikes by whispering the magic words “major question.” It is less of a doctrine than a talisman that can ward off agency action that the court dislikes. The majority can wield it with the knowledge that our dysfunctional Congress will likely never pass a legislative solution to judicial vetoes. As Justice Elena Kagan noted in dissent, this principle is a repudiation of textualism, the theory that courts must apply the words of a statute as written. “Some years ago,” she wrote, “I remarked that ‘[w]e’re all textualists now.’ It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”
The chief justice, as he is wont to do, gave the impression of splitting the baby on Thursday, following up West Virginia with an opinion in Biden v. Texas, which looks like a victory for the president. And it is, but only in the sense that five justices took one small step back from the abyss of total judicial lawlessness. This lawsuit asked the federal courts to wrest authority over border policy from the president and turn it over to a lone Trump judge in Texas, Matthew J. Kacsmaryk. Republicans cooked it up to stop Biden from rescinding Trump’s “Remain in Mexico” policy. Remain in Mexico forced refugees and asylum-seekers to live in violent tent cities on the Mexican side of the border while awaiting a hearing to determine if they qualified to stay in the U.S.
Before Remain in Mexico, the government typically let migrants reside in the United States while awaiting their hearings. In 2021, Biden tried to restore the old status quo by revoking Trump’s policy, but Kacsmaryk stopped him. He declared that border agents had two options when processing migrants at the border: send them back to Mexico or detain them, taking away the option of release inside the United States. (If he were correct, every president since Bill Clinton violated immigration law each day of their terms.) Of course, there are not anywhere close to enough facilities to detain every migrant. So Kacsmaryk’s decision forced the Biden administration to send them back to Mexico.
To do that, the administration needed approval from the Mexican government, which it did not have. Kacsmaryk thus ordered administration officials to restart diplomatic negotiations with Mexican diplomats, threatening to sanction government lawyers if the talks failed. The 5th U.S. Court of Appeals upheld his order.
By a 5–4 vote, the Supreme Court overruled Kacsmaryk on Thursday. Roberts’ majority opinion, joined by Justice Brett Kavanaugh and the liberals, constitutes the bare minimum that SCOTUS could do to rein in an out-of-control judge. The thrust of his opinion is that Congress could not have possibly forced border authorities to undertake the impossible task of detaining or deporting any migrant. Roberts noted that federal law instead gives the executive branch discretion to decide how to address migrants. He also reminded the lower courts that the Constitution directs the president to “engage in direct diplomacy” with foreign countries, not the judiciary.
It’s nice to know that five justices still believe Biden is, in fact, the head of state. It’s outrageous, however, that it took Roberts and Kavanaugh this long to say so (and that their more reactionary colleagues disagree). The Supreme Court had an opportunity to halt Kacsmaryk’s power grab in August. By a 6–3 vote, it declined. Its course of action sends a message to the Biden administration that it does not get to do anything until SCOTUS says so. Even when juristocrats revive Trump’s zombie policies, the Biden administration cannot expect the kind of immediate relief that the court provided to Trump. A Democratic president can only exercise his constitutional duties after he has prostrated himself before SCOTUS, asking permission from the real guys in charge.
We barely had time to recover from West Virginia and Texas before the Supreme Court dropped the judicial equivalent of an atomic bomb. In its final orders list before Justice Ketanji Brown Jackson joined the court, it announced that it will hear Moore v. Harper next term. It is impossible to overstate the threat that Moore poses to American democracy. The case asks the court to adopt the “independent state legislature” theory, which holds that state legislatures have near-limitless power over their state’s election law. State courts are shut out, as are election boards and maybe even the governor. State constitutional limits on voter suppression, including gerrymandering, are void. Independent commissions tasked with redistricting are illegitimate.
Taken to its extreme, this theory allows state legislatures to nullify the will of the voters and assign presidential electors to the losing candidate. That’s what Trump urged swing state lawmakers to do in 2020; it formed the heart of his failed coup. It’s also what Ginni Thomas encouraged legislators to do while she facilitated that coup. Her husband, Justice Clarence Thomas, is a strong proponent of the theory.
Harper specifically asks whether the North Carolina Supreme Court can place limits on the state legislature’s radical gerrymanders under the state constitution. The Supreme Court’s conservative majority blessed this exact approach in 2019’s Rucho v. Common Cause. But no one should trust this court to uphold its promises. Four justices—Thomas and Kavanaugh, plus Sam Alito and Neil Gorsuch—have already endorsed this theory. It is wrong from top to bottom, an egregious affront to originalism that defies historical practice as well as the constitutional authority of states to structure their own governments. But it also benefits Republicans, who hold disproportionate control of state legislatures due to the very partisan gerrymandering practices at issue in the case. There is an alarmingly real chance that five justices will set aside originalism, just as they set aside textualism in West Virginia, to reach a result that aligns with their political preferences at the expense of our democracy.
At the end of her West Virginia dissent, Kagan wrote that the court “appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy.” She added: “I cannot think of many things more frightening.” The limits of Kagan’s imagination, though, are no match for this supermajority. The Supreme Court will give us many, many more reasons to fear it in the coming years. In one sense, this term marked the culmination of multiple decadeslong crusades against liberal precedent. But this was not the grand finale of the conservative revolution. It was the opening act.
