How much do the supreme court’s six Republican justices care about what Americans think of them? The question haunts most accounts of the supreme court, an anxious subtext detectable in every discussion among court watchers and pundits when the court agrees to hear a specific case and after every oral argument.
There is a safe assumption – borne out in the conservative supermajority’s decisions, in their statements and in their pre-court careers – that they are all personally inclined to take the maximalist conservative route. If they were unconstrained by other factors, like public opinion and the legitimacy of the court, one gets the distinct sense that they would do the worst thing possible: reverse the most social progress, cause the most suffering, undermine democratic representation as much as possible and accrue as much political power as they can to themselves. What stops them, or slows them down, is not an instinct for moderation, or a sense of respect for the other branches, or the law. What slows them down is a caution about public opinion, a fear of what will happen if their institution is delegitimized in the minds of the people – what slows them down, that is, is something like shame.
This term should prove, once and for all, that shame is not an adequate check on the court.
It’s true that the Republican justices surprised some court watchers by pulling their punches in cases where they may have been tempted to pursue a more aggressive approach. They declined to overturn what remains of the 1965 Voting Rights Act, for instance, even though destroying the legislation has been a decades-long aspiration of Chief Justice John Roberts – though, to be clear, what’s left of the act after previous court rulings eviscerating it does not provide anything like adequate protection for the franchise of Black voters. They did not embrace the most extreme version of the so-called independent state legislature theory, which would have in effect ended democratic elections for the House of Representatives in many states – though in the process of striking down the theory, they also reserved the right of federal courts (that is, themselves) to intervene in federal elections. To some, this is what counts for a moderate term from the revanchist court: a handful of decisions where the justices seemed to temper their own impulses, at least temporarily, and either preserved the diminished status quo or chose not to accelerate their aims as quickly as they should have.
But the delusion of the court’s moderation should have been put to rest in the last week of its term, when it issued three decisions that will dramatically upend American life: ending affirmative action in college admissions, creating a carve-out in civil rights law that allows businesses to claim a right to discriminate against gay people and using a flimsy legal theory to declare the Biden administration’s student debt relief plan as illegal. These life- and law-altering rulings were matched in their extremism by an earlier decision gutting the Clean Water Act, allowing for unregulated pollution of American wetlands through a strained and inventive reading of the word “adjacent”.
If these justices were capable of shame, one would expect that now, more than ever, would be the moment when that feeling would act to restrain them. After the court decimated the rights of American women last year in Dobbs, the case that overturned Roe v Wade, public approval of the court has never been lower. More and more Americans understand the justices as politicians, ones who are not accountable to the electorate and not acting with either Americans interests or their preferences in mind.
The intervening months have done much to confirm this feeling: not only are the justices political actors, but a tidal wave of reporting suggests that many of them are particularly corrupt ones. Last November, the New York Times published a report in which a former conservative activist detailed how a lobbying group purchased a building near the supreme court, infiltrated the body’s historical society, befriended the justices and allegedly received advance notice of the ruling in a 2014 birth control case from Samuel Alito. This April, ProPublica released the first of a series of disclosures about Clarence Thomas’s relationship with the billionaire Republican mega-donor Harlan Crow, who has showered the justice with lavish vacations – at his New Hampshire Compound, on his “superyacht”, and onboard his private plane – as well as paying for the private school education of Thomas’s nephew and buying the home of the justice’s mother, renovating it and allowing her to live there rent free. Similar revelations were made about a luxury fishing trip taken by Justice Alito, paid for by another billionaire Republican donor, Paul Singer, whose subsequent interests are before the court Alito has not recused himself from. When asked to appear before the Senate judiciary committee to explain these gifts and the subsequent failures of disclosure and refusal, Chief Justice John Roberts rejected Congress’s oversight power, writing a curt letter telling the Senate to go kick rocks. These are not the actions of people concerned for their court’s legitimacy. These are the actions of people convinced that there is nothing the elected branches can do to stop them.
Is it worth explaining the legal rationales that the court used to reach these ruinous outcomes? To give credence to the court’s professed reasoning risks suggesting that the justices are acting in good faith. They are not. The fact of the matter is that many of the term’s most significant decisions were based on fanciful notions about history, creative and far-fetched readings of statute, hypotheticals and invented facts. In the affirmative action case, the conservative majority relied on a misreading of history – so strained I can only describe it as cynical – to assert that both the Reconstruction amendments and the court’s own civil rights jurisprudence in cases like Brown v Board of Education were “colorblind”. In the student debt case, the court accepted Missouri’s right to sue on behalf of a debt servicing agency that wanted no part in the lawsuit and had to be legally compelled to produce the documents necessary for the plaintiffs; then, the justices reached their preferred conclusion via the “major questions doctrine”, a novel and flimsy legal alibi that has in recent years been used by the court to assert that they and not the executive branch, have authority over issues of social or political controversy. In the anti-gay case, the court ruled in favor of a woman who claimed she would be hurt by having to make a wedding website for a gay couple – even though she had never been asked to do so. In a fair and lawful court, these cases would have been dismissed on procedural grounds. But this supreme court, a revanchist, activist conservative political body that plunders authority from the elected branches, the justices reached the merits – because they wanted to.
The court has hijacked American democracy, vastly overextended its own power and flaunted its corruption. It will take a political movement to stop them.
Moira Donegan is a Guardian US columnist
