The post-legal Supreme Court

The highest Court in the most powerful nation in the world appears to have decided that it only needs to follow the law when it feels like it.

Last December, for example, the Supreme Court handed down a decision that fundamentally alters the Union — giving states sweeping authority to restrict their residents’ constitutional rights.

At least, that’s what happened if you take the Court’s 5-4 decision in Whole Woman’s Health v. Jackson seriously. Jackson involved Texas’s anti-abortion law SB 8, which allowed “any person” who is not employed by the state to sue anyone they suspect of performing an abortion after the sixth week of pregnancy, and to collect a bounty of at least $10,000 from that abortion provider. The Court allowed that law to take effect, even though abortion was still considered a constitutional right at the time.

If you apply the logic from Jackson more broadly, any state could pass a law unleashing such litigious bounty hunters upon people who exercise any constitutional right. Perhaps a state wants to make it illegal to own a gun, or maybe it wants to allow bounty hunters to sue any Black family that sends its child to a predominantly white school — and the federal judiciary will simply stand back and let it happen. Realistically, the Court is unlikely to allow these sorts of attacks. But to spite abortion, the conservative majority was willing to open the door to them.

Jackson, moreover, was only the beginning of a Rumspringa of conservative excess led by the Court’s Republican-appointed majority.

In its just-completed term, the Supreme Court overruled Roe v. Wade, permitting states to ban abortions without having to resort to SB 8-style chicanery. It also overruled a seminal 1971 decision prohibiting the government from advancing one religious belief at the expense of others. It all but neutralized another half-century-old precedent permitting federal law enforcement officers who violate the Constitution to be sued. And the Court’s Republican majority dismantled two decisions protecting criminal defendants who were convicted or sentenced without adequate defense counsel, most likely condemning an innocent man to die in the process.

The Court endangered huge swaths of long-existing gun laws, striking down a New York state law that has been on the books for 109 years. And it did so in an opinion that simultaneously fetishizes the “Second Amendment’s plain text,” while ignoring the first thirteen words of that amendment.

The same Court that attacked Roe as “remarkably loose in its treatment of the constitutional text” saw no problem with ignoring half of the text of the Second Amendment.

In what may be the most consequential environmental case in decades, the Court relied on something called the “major questions doctrine” — a fairly new legal doctrine that is never mentioned in the Constitution or in any statute and that was invented entirely by judges — to strip the Environmental Protection Agency of much of its authority to fight climate change.

The Court even abandoned any pretense that it must be honest about the facts of the cases it decides, claiming that a public school football coach who ostentatiously prayed on the 50-yard line after games — while surrounded by players, spectators, and members of the press — was merely engaged in a “short, private, personal prayer.”

It was a singularly alarming Supreme Court term. The Court didn’t simply abandon longstanding legal rules, at times it seemed to abandon the rule of law altogether.

I make a strong claim in this essay, arguing that the Supreme Court of the United States is no longer deciding many major cases in a way that is recognizably “legal.” So let’s start by establishing a baseline definition of what constitutes the rule of law and what it means for a judge to act consistently with this principle.

Societies that adhere to the rule of law must apply the same binding rules to all persons and institutions, including the state itself. According to the United Nations, these rules must be “publicly promulgated, equally enforced and independently adjudicated,” and the rule of law demands “equality before the law,” “legal certainty,” and “avoidance of arbitrariness.”

The late Justice Antonin Scalia offered one of the best explanations of how a judge can act consistently with the rule of law in a 1989 essay. “When, in writing for the majority of the Court, I adopt a general rule,” Scalia explained, “I not only constrain lower courts, I constrain myself as well.” Because “if the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences.”

Scalia’s formulation captures the rule of equality before the law. If a judge applies a certain rule to Republicans, they must be comfortable applying it to Democrats as well. If they apply one rule to people who oppose abortion, they must apply the same rule to people who support abortion.

Similarly, Scalia’s formulation advances the values of legal certainty and non-arbitrariness. While there are extraordinary circumstances when the Supreme Court should overrule one of its previous precedents, lawyers and lawmakers should typically be able to look at the Court’s past decisions and be able to predict how the law will apply moving forward. When possible, the Supreme Court should hand down clear legal rules which enhance this predictability and that cannot easily be manipulated to hand down arbitrary decisions that favor some groups over others.

With these principles of equality, clarity, and non-arbitrariness in mind, let’s take a look at some of the Court’s recent decisions.

There are a handful of Supreme Court decisions that legal scholars refer to as the “anti-canon,” decisions that were so poorly reasoned and monstrous in their consequences that they are taught to law students as examples of how judges should never behave. The anti-canon includes cases like the pro-slavery decision in Dred Scott v. Sandford (1857), the segregationist decision in Plessy v. Ferguson (1896), the anti-worker decision in Lochner v. New York (1905), and the Japanese-American internment decision in Korematsu v. United States (1944).

Whole Woman’s Health v. Jackson belongs on this list. It is, as Chief Justice John Roberts wrote in dissent, so thoroughly inconsistent with the idea that the Constitution binds every state government that it threatens to transform that document into a “solemn mockery.” Jackson introduces an intolerable amount of unpredictability and arbitrariness into US law, transforming the constitutional rights that every American should reasonably be able to rely upon into dust that can be blown away by a sufficiently clever state legislature.

So long as Jackson remains good law, no constitutional right is safe.

To understand why Jackson is so troubling and why it threatens literally all constitutional rights, it’s helpful to understand why Texas wrote this law to rely on private bounty hunters.

As a general rule, someone who believes that a state law violates their constitutional rights cannot sue that state directly in federal court. Under the Court’s decision in Ex parte Young (1908), however, they may sue the state officer tasked with enforcing an allegedly unconstitutional law. Thus, for example, if a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state police to block that law.

But SB 8, the anti-abortion law at issue in Jackson, attempts to cut state officers out of the enforcement process altogether. SB 8 provides that it “shall be enforced exclusively through ... private civil actions” that can be filed by anyone who is not a state employee.

It should be noted that Texas lawmakers did not actually succeed in writing a law that no Texas state official plays a role in enforcing. The plaintiffs in Jackson sued a Texas state judge who would hear lawsuits brought under SB 8, as well as the clerk of a Texas court charged with moving these cases through the courts. If Young means anything, these plaintiffs should have been allowed to move forward with their federal lawsuit.

But Gorsuch’s majority opinion in Jackson holds that these suits against Texas state judges and clerks may not proceed. That means there’s no way to obtain a federal court order halting SB 8.

In fairness, an abortion provider could have conceivably waited until they were sued in Texas state court for violating SB 8, and then argued that SB 8 violates Roe v. Wade in state court. But even if Roe were still good law, this defense is not adequate to protect abortion providers’ rights.

That’s because SB 8 doesn’t simply allow any person who is not employed by the state of Texas to sue an alleged abortion provider, it also permits a victorious plaintiff to collect a bounty of at least $10,000 from the provider. There is no upper limit to this bounty, and an alleged abortion provider who successfully defends against an SB 8 lawsuit can still be sued by other individuals hoping to collect the bounty.

Anyone suspected of performing an abortion that violates SB 8 could be hit by hundreds or even thousands of lawsuits. And they would either have to hire an army of lawyers to defend against these lawsuits or risk being ordered to pay a bounty that has no upper limit. Either option risks bankruptcy.

If taken seriously, moreover, Jackson permits states to use an SB 8-like structure to attack any constitutional right. A state might allow private bounty hunters to sue any journalist who publishes a news article that paints a Republican elected official in a negative light, or it might prohibit private citizens from criticizing the state’s governor. Shortly after Jackson was handed down, Democratic California Gov. Gavin Newsom threatened to sign a law permitting private bounty hunters to sue anyone who “manufactures, distributes, or sells an assault weapon.”

It remains to be seen whether this Court would apply its Jackson decision to a state law attacking the Second Amendment or other constitutional freedoms. But if the Court winds up applying Jackson only to constitutional rights that a majority of its members do not like, that’s an even worse outcome for the rule of law than if it applies Jackson’s anti-constitutional rule to every SB 8-style law that makes it through any state legislature.

The rule of law is the rule of equality; it means that the same rules must apply to liberal litigants as apply to conservatives.

In its late June decision in West Virginia v. EPA, the Court effectively placed itself at the head of multiple executive branch agencies — above President Joe Biden — giving itself veto power over any regulation handed down by these agencies. In doing so, it fundamentally reshaped the US’s separation of powers.

Many federal laws lay out a broad overarching policy, then give an executive branch agency authority to implement that policy through binding regulations. West Virginia concerned a provision of the Clean Air Act, which requires certain power plants to use the “best system of emission reduction” that can be achieved with currently available technology, and then tasks the EPA with determining what the “best system” to reduce emissions may be at any given moment.

This way, as technology evolves to allow cleaner energy production, the EPA can issue new regulations requiring the energy industry to adopt these cleaner technologies, without Congress having to pass a whole new law.

West Virginia imposed an arbitrary new limit on EPA’s congressionally given authority, which appears nowhere in the Clean Air Act or in any other federal law. Under West Virginia, the EPA may not use its authority to encourage “generation shifting” — that is, requiring the energy industry to shift from particularly dirty methods of energy production, such as coal, and toward cleaner methods such as solar or natural gas. Instead, the EPA may only use its authority to require existing coal plants to install new devices or otherwise alter how they burn coal to produce energy.

To justify its policy judgment that generation shifting is not allowed, the Court’s six Republican appointees relied on something called the “major questions doctrine.” Under this doctrine, the Court explained in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Thus, if a majority of the Court deems a regulation to be too significant, it will strike it down unless Congress very explicitly authorized that particular regulation.

But the Court has never fully articulated what causes a regulation to be so significant that it runs afoul of this doctrine, and, in any event, the doctrine comes from nowhere.

The Constitution does not mention this doctrine. Nor does any federal law. The Court has, in effect, given itself the power to veto any regulation issued by the executive branch of government, even when Congress broadly authorized an executive branch agency to regulate.

Until very recently, the justices avoided such encroachments upon the executive’s domain. As the Court explained in Mistretta v. United States (1989), “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Until a few years ago, the Court’s decisions urged judges to defer to federal agencies on nearly all policy-related questions.

The reasons for this deference were twofold. As the Court explained in Chevron v. Natural Resources Defense Council (1984), agencies typically have much greater expertise in the areas that they regulate than the judiciary. And federal agencies also have far more democratic legitimacy than unelected judges who serve for life. “While agencies are not directly accountable to the people,” the Court said in Chevron, agencies answer to a president who is accountable to the voters. And so “it is entirely appropriate for this political branch of the Government to make such policy choices.”

But now the Court has given itself the power to declare any regulation that it does not like to be a sin against the “major questions doctrine,” and in so doing to veto that regulation. That doesn’t just introduce far too much arbitrariness into federal law. It’s also an extraordinary transfer of power away from an elected branch of government and toward a judiciary staffed by unaccountable judges.

The Second Amendment is unusual in that it states explicitly what purpose it is supposed to advance. It provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” As the Supreme Court held in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias, and the amendment must be “interpreted and applied with that end in view.”

Nevertheless, the Supreme Court held last month, in New York State Rifle & Pistol Association v. Bruen, that “individual self-defense is ‘the central component’ of the Second Amendment right,” and that gun regulations must be judged according to whether they undercut this atextual purpose.

I don’t think much more needs to be said about Bruen (although if you want to read a longer critique of Justice Clarence Thomas’s majority opinion in this case, I wrote that piece here). The Second Amendment’s text is crystal clear about why that amendment exists. But six Republican appointees on the Supreme Court believe the Second Amendment should have a different purpose. So they decided that the text of the Constitution does not matter. That is the very hallmark of an arbitrary decision.

And it’s not the first time this Court has disregarded legal text to reach a certain end.

About a year ago, in Brnovich v. DNC (2021), the Supreme Court invented a bunch of new limits on the Voting Rights Act — the landmark law prohibiting race discrimination in elections — that appear nowhere in the law’s text. As Justice Elena Kagan wrote in dissent, Justice Samuel Alito’s majority opinion in Brnovich “mostly inhabits a law-free zone.” No lawyer could have read the text of the Voting Rights Act and predicted the specific limits the Court placed on voting rights in Brnovich.

Similar things could be said about most of the Court’s recent voting rights decisions. In Shelby County v. Holder (2013), for example, the Court neutralized a provision of the Voting Rights Act that requires states with a history of racist election practices to “preclear” any new voting rules with federal officials before those practices can take effect. Shelby County rested on a so-called “‘fundamental principle of equal sovereignty’ among the States” that appears nowhere in the Constitution,

Indeed, the Constitution’s text indicates that Congress has broad power to decide how to protect voting rights. Its 15th Amendment provides that states may not deny or abridge the right to vote “on account of race, color, or previous condition of servitude,” and it gives Congress the power “to enforce this article by appropriate legislation.”

This year, the Court took similar liberties with voting rights law, handing down at least three “shadow docket” decisions that abridged the right of Black Americans to cast a vote that actually matters. In Merrill v. Milligan and Ardoin v. Robinson, the Court reinstated racially gerrymandered maps in Alabama and Louisiana that effectively cut Black voters’ electoral power in those states in half. And in Wisconsin Legislature v. Wisconsin Elections Commission, the Court struck down state legislative maps due to concerns that they may give too much electoral power to Black voters.

The Court provided little or no explanation for why it reached these decisions, but the common theme is that a majority of the justices voted to reduce Black electoral power in all three cases. And the Court plans to hear the Merrill case again in October — most likely so that it can permanently weaken the Voting Rights Act’s safeguards against racial gerrymandering.

One other theme from this recent term is worth mentioning. In three major constitutional cases involving three very different provisions of the Constitution, the Court ruled that judges must look to historical practice when interpreting the nation’s founding document.

In the Bruen guns case, the Court held that “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation” if it wishes to defend a gun law against a Second Amendment challenge. In Dobbs v. Jackson Women’s Health Organization, the case overruling Roe, the Court declared that rights that are not specifically mentioned in the Constitution may only be protected by courts if they are “deeply rooted in this Nation’s history and tradition.” And, in Kennedy v. Bremerton School District, the praying coach case, the Court decreed that the provision of the First Amendment requiring separation of church and state “must be interpreted by ‘reference to historical practices and understandings.’”

One glaring problem with this approach to constitutional law is that history is contested, and even expert historians frequently disagree about the right way to interpret historical events. So this new historicism inevitably invites arbitrary and unpredictable decision-making by judges.

In the Bruen case, for example, both Thomas’s majority opinion and Justice Stephen Breyer’s dissent waste a simply mind-numbing amount of ink recounting centuries of gun laws stretching at least as far back as a 1328 law providing that Englishmen may not “ride armed by night nor by day, in Fairs, Markets.” In the end, the six Republican appointees conclude that this multi-century tour of English and American gun laws supports the policy outcome preferred by the Republican Party; and the three Democratic appointees look at the exact same history and conclude that it supports the policy outcome preferred by the Democratic Party.

Similarly, while Alito’s Dobbs opinion concludes that a right to abortion was “entirely unknown in American law” before the latter part of the 20th century, the Roe opinion reached the opposite conclusion, concluding that the historical practice was to allow abortions prior to “quickening” — “the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy.” At least some actual historians have argued that Alito is wrong and Roe was correct about this point.

In any event, I, like Samuel Alito, am a lawyer and not a historian. I, like Clarence Thomas, do not have a doctorate in history or any formal training in how professional historians resolve historical debates. I do not claim any ability to resolve what people in 1789 might have thought about laws banning assault rifles that didn’t yet exist, or whether the generation that ratified the 14th Amendment would have believed that mifepristone should be legal.

I will note, however, that the entire judiciary is staffed by lawyers and not historians, and that judges typically decide cases based on briefs authored by lawyers who are not historians. So the Court’s penchant for turning constitutional cases into debates over history is likely to produce a lot of bad history and a lot of bad law. It’s a bit like demanding that the nation’s public health policy be determined by a panel made up entirely of physicists.

And that’s assuming that these amateur historians, now tasked with determining whether the 17th-century jurist Sir Matthew Hale would have supported a ban on machine guns, are acting in good faith. Which brings us back to the Court’s factually challenged decision in Kennedy.

Recall that, in Kennedy, six of the justices couldn’t tell the difference between a “short, private, personal prayer” and a public spectacle even after they were confronted with photographic proof that Coach Kennedy decided to make a public spectacle of himself. If these judges are so loose with the facts of a well-documented event that occurred in 2015, imagine the liberties they may take with truly contested events that occurred nearly 250 years ago.

Not so long ago, the Court had a very good solution to the problem that the meaning of legal texts — not to mention historical events — is often contested even by subject-matter experts operating in good faith.

Cases like Mistretta and Chevron counseled judicial deference to federal agencies because it is better for agencies accountable to a democratic president to resolve contested policy questions than to leave these questions to the one unelected branch of government. Other cases, such as United States v. Carolene Products (1938), warned that courts should typically defer to Congress when it was unclear whether the Constitution permits a particular law to stand. The advantage of this approach is that the people can always vote out a Congress that passed a bad law, but if the Court hands down a bad decision, there is often no solution other than a constitutional amendment.

The current Court hasn’t simply abandoned these doctrines of deference, it appears to be replacing them with new doctrines that don’t so much constrain judicial power as require judges to rely on historical sources when striking down laws that those judges don’t like. In cases involving federal agencies, that can mean the new doctrines require judges to use the magic words “major question” whenever they want to veto a regulation.

And this new era of judicial self-empowerment is only just beginning.