Late Term Decisions Highlight Need To Curb Its Power
A spate of decisions in the last two weeks of the Supreme Court’s term not only deprive Americans of fundamental rights, they further a white supremacist agenda and rob the American people of their democracy and the protections of the rule of law.
A barrage of late-term Supreme Court decisions handed down in the last two weeks of June attacked core aspects of the Constitution along with the structure and function of American democracy, furthering a political project decades in the making.
Multiple decisions undermined Congress’ power to legislate, enhanced the president’s power to act lawlessly, empowered the wealthy to buy elections, attacked individual rights and furthered a white supremacist agenda that’s deeply unpopular with the American public, as well as being contrary to the Constitution.
At a time when Congress has virtually ground to a stop, the Supreme Court has usurped Congress’ role, becoming the source of the most sweeping legislative agenda, rewriting the rules of how Americans live.
The Racist, Anti-Immigrant Court Shows Its Cards
On June 25, the court decided a pair of immigration-related cases 6-3, one of which involved deliberately unlearning the lessons of the Holocaust, while the other ignored Trump’s blatant anti-Black racism. The decisions endorsed Trump administration lawlessness with respect to two categories of people fleeing for their lives: asylum-seekers, who have specific individual fears, and those with Temporary Protective Status (TPS), because of general conditions in the countries they’re fleeing from.
In the asylum case, the majority based their decision on drawing a distinction between people arriving “at” the border vs. those arriving “in,” but this is precisely the same distinction that was used to turn away 900 Jewish refugees on the MS St. Louis in 1939, over 250 of whom died in the Holocaust. In effect, the 6-3 conservative majority was retroactively cooperating with Adolf Hitler.
In the TPS case, the Trump administration simply ignored the law, which requires a careful process before TPS status is revoked. But the conservative majority held a provision of the TPS statute limiting lawsuits challenging TPS “determinations,” preventing courts from even considering if the law had been broken. It was yet another get-out-of-jail-free card for Trump to add to his collection. The majority also held that Trump’s repeated public denigration of Haiti and Haitians wasn’t evidence of unconstitutional racial animus. But in her dissent, Justice Elana Kagan noted that “The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print. (Indeed, one measure of the President’s way of speaking about Haitians is to compare it with the majority’s, which is unfailingly respectful.)” She then presented some of the statements the majority tried to ignore.
More Diverse Attacks On Rights
These two cases were striking for the clarity of their animus toward immigrants seeking safety — one of America’s most fundamental promises throughout our history. But two other cases that day also trampled on people’s rights. In one, the court ruled that Monsanto can’t be held liable in thousands of lawsuits over its weed killer Roundup. In another case, the court struck down a Hawaii gun law that required gun owners to get permission from property owners before bringing guns onto their land. Gun rights now trump property rights, it seems, in the ever-changing conservative legal world.
Two days earlier, the 6-3 conservative supermajority struck a double whammy in a single case. It ruled against Damon Landor, a Rastafari man whose dreadlocks were forcibly shaved by Louisiana prison officers in violation of his religious beliefs. They stopped short of saying what happened to Landor was fine. They just said he had no remedy.
It was a double whammy because they said that Congress was powerless to protect him, ruling that a law passed specifically to do so could only be binding on the prison officers if they agreed to be bound by it — a truly fantastical idea about how the rule of law should work. The law was based on Congress’ spending power, so this was just another example of how the court conservatives have joined with Trump in undermining Congress’ core power of the purse.
Attacking Congress And Independent Agencies
While the immigration cases were morally heinous and flew in the face of who we are as a nation of immigrants, they did not strike at the core of America’s system of government, but another case the next week did. On June 29, in Trump v. Slaughter, the six conservatives overturned a unanimous 91-year old precedent, Humphrey’s Executor v. US, which held that Congress could impose limitations on the president’s power to fire leaders of multimember agencies.
The logic behind Humphrey’s Executor is simple: Congress makes the laws, and the president carries them out. In setting up the Federal Trade Commission (which William Humphrey led), Congress ensured that anyone in his position could only be fired for cause, not for political reasons. The same approach applies to a broad array of administrative agencies created since the Progressive Era.
While the president has discretion about how to carry out the laws, his discretion isn’t absolute — he cannot break the laws. The Constitution’s “Take Care” clause specifically says the president “shall take Care that the Laws be faithfully executed.” The same six conservative justices previously attacked the Constitution in their 2024 Trump v U.S. decision, granting Trump immunity from prosecution.
We have, in effect, been in a lawless state ever since then, according to the conservative Supreme Court majority, with the president free to do whatever he wants, unless the Supreme Court itself steps in to stop him. In In Trump v. Slaughter, they declined to do so, allowing him to take complete control over agencies that Congress deliberately created to be politically independent. But the same day — almost in the same breath — the court decided in Trump v. Cook that it would stop Trump when it came to firing leaders at one and only one agency: the Federal Reserve.
At Liberal Currents, political scientist Pat Sobkowski expressed a widely-held view:
“Put briefly, one cannot make legal sense of the two decisions. The only way to explain the differing results in the two cases is to conclude that the Roberts Court realizes the consistent application of their reasoning would jeopardize the world economy, and the justices make a poorly rationalized exception to avoid that outcome.”
While Trump v. Slaughter was the most direct attack on the core of our constitutional order, it was not alone in creating major damage. The next day, in NRSC v. FEC, the six conservatives gutted another law passed by Congress, campaign finance law, overturning a 2001 precedent that upheld restrictions on political parties’ coordinated expenditures with candidates.
While multi-millionaire donors campaign spending has skyrocketed in recent years — growing exponentially since the Citizens United ruling, this ruling will give them more direct hands-on influence, and is widely expected to help the GOP flood the airwaves, social media and mailboxes in advance of the midterms. In her dissent, Justice Kagan wrote, “For those who would prefer even more money to be pumped even more easily into politics despite the danger of corruption — this overruling is for you.”
A “Victory” That’s Really An Alarm Bell
These are hardly the only harmful, anti-democratic rulings that came down in the last two weeks of the term. But it’s also important to scrutinize one supposed victory: the decision preserving birthright citizenship in Trump v. Barbara, which only survived by a single vote on the constitutional question.
Constitutional law professor Eric Segal expressed a common view on Bluesky, “The dissenting justices in the birthright case wrote opinions that would not pass law school exams.” And Reconstruction historian Manisha Sinha, whose book, “The Rise and Fall of the Second American Republic” was cited by Justice Ketanji Brown Jackson in her brilliant concurrence, bluntly stated, “This should have been an unanimous 9-0 decision.”
Until Trump returned to office and issued his executive order trying to eliminate birthright citizenship, almost no one had questioned it. The 1898 case affirming it, Wong Kim Ark, was a 6-2 decision that came just two years after the 8-1 Plessy v. Ferguson decision that legalized segregation, so it could hardly be considered a liberal, much less a controversial decision. Thus the fact that any justice voted to overturn was remarkable, if not downright alarming.
As the Atlantic legal journalist Quinta Jurecic put it:
The movement to overturn Roe and Humphrey’s Executor was built over decades. It took an enormous amount of effort to manufacture that sense of scholarly viability…. . The right got 5-4 on birthright with a sloppy last-minute scramble.
Liberals who feel secure with that outcome are clearly not paying attention. The right is up in arms over their loss, proclaiming it a catastrophe that the law remains unchanged after more than 150 years.
The Need For Court Reform
Jurecic’s assessment is spot on. Conservatives have been waging a multi-generational war to rewrite the Constitution through the Supreme Court, regardless of what the people or their elected representatives might think. The good news is that Democratic politicians finally seem to be waking up. They should have capitalized on public outrage over the repeal of Roe in 2022, but instead they collectively shrugged. As a result of doing nothing, the court played a key role in returning Trump to office in 2024, and its rush of last-minute decisions this year further destabilizes America as a country based on a stable rule of law. The idea that court reform would be “too political” or even “extreme,” is laughable. It’s clearly a necessity, if the country is to survive. The only question is: what form should reform take?
“It is no deliverance that this [birthright citizenship] decision came down as it did,” Talking Points Memo publisher Josh Marshall wrote. “It is a reminder of the profound corruption at the heart of this Court and the absolute necessity of reform if democratic self-government has any future in the United States.”
In the New York Times, constitutional law professor Kate Shaw identified several ideas:
What could that court reform look like? It could mean provisions stripping the Supreme Court of the power to hear challenges to certain newly enacted laws, or legislating supermajority voting requirements so that only a showing of unanimity or close to it can justify invalidating certain laws. It could also include statutorily creating additional Supreme Court seats, then moving quickly to fill them with jurists who will not pursue the current court’s apparent goal of boundless power for both the president and itself.
But there are growing calls for more fundamental reform. The Supreme Court’s power to overturn federal laws isn’t spelled out in the Constitution — it’s the result of an early Supreme Court decision. What is in the Constitution is Congress’ power to absolutely control what cases — if any — the Supreme Court hears on appeal, along with its power to create any other courts it wants to.
There’s already a bill introduced this year that would do both of these: completely strip the Supreme Court of its appellate power, and give it to a new court, selected by lot periodically from the entire federal judiciary. A new court like this would be far more humble, acting much more like a true court than the super-legislature the Supreme Court has become.
Of course, Democrats can’t do any such thing earlier than January 2029 at the earliest. But in light of how savagely the court has attacked American democracy at the end of this last term, it’s time to start thinking now about what’s to be done, so that no time is lost when the hour arrives.