Portside

The Supreme Court of the United States is more conservative today than at any point since the 1930s. It’s also more confident in its own power than any panel of justices since the Franklin Roosevelt administration. And it is quite eager to wipe away foundational precedents that have stood for decades, sometimes without much warning that a transformational decision is around the corner.

Consider the Court’s recent decision upending five decades of abortion jurisprudence. By allowing a Texas law banning at least 85 percent of abortions to take effect, the justices followed none of the procedural norms that their predecessors typically adhered to before upending a famous Supreme Court precedent.

The order allowing Texas’s anti-abortion law to go into effect is one paragraph long. It does not even attempt to engage with the legal questions presented by that law. And it was decided on the Court’s “shadow docket,” a mix of emergency motions and other rushed cases that receive only cursory briefing before they are decided by the justices. In total, the justices seem to have spent about two days pondering this case before upsetting a half-century of law.

As the Atlantic’s Adam Serwer wrote, “neutralizing Roe through normal channels would have taken time, and the Supreme Court’s conservatives did not want to wait.” So the five justices in the majority decided that the ordinary rules did not apply “because they felt like it, and because they don’t believe anyone can stop them.”

This sort of behavior, in which conservative justices hand down sweeping pronouncements while only barely pausing to consider what they are doing, is now a regular affair for the Supreme Court.

The shadow docket, to be clear, is not a new phenomenon. In the past, lower courts would occasionally hand down decisions that were so inconsistent with existing law that the justices needed to intervene in order to preserve their authority. In 2019, for example, the Court temporarily blocked a Louisiana anti-abortion law that was identical to another law the Court had struck down a few years earlier, after a lower court refused to block it.

But shadow docket orders both became more frequent and (the Louisiana abortion order aside) more consistently conservative under President Donald Trump.

Three years ago, Justice Sonia Sotomayor warned that her Court was doing “extraordinary” favors for the Trump administration on its shadow docket. According to University of Texas law professor Steve Vladeck, the Supreme Court issued 28 shadow docket orders blocking lower court rulings against the Trump administration while the Justice Department appealed the case. (Though the Biden administration is still young, a pair of early cases suggest that the conservative Court will not show similar deference to a Democratic president.)

Similarly, at the height of the pandemic, the Court handed down two major, precedent-setting decisions on its shadow docket that revolutionized the Court’s approach to “religious liberty” cases — potentially turning worship services into superspreader events, and gutting a three-decade-old precedent in the process.

If the story here was simply that the justices are taking days to resolve difficult legal questions that they used to ponder for months, that would be deeply concerning. Because the Court has the final word on questions of federal law, errors in a hastily decided Supreme Court case are not easily corrected. Often, these errors can only be addressed by a constitutional amendment or by changing the membership of the Court itself.

But the rise of shadow docket orders don’t simply reveal the impatience of the Court’s conservative majority to remake the law in their own image. These orders are also a symptom of two broader trends within the federal courts.

The first is that the Court’s new majority is increasingly comfortable with its own power, and increasingly hostile toward longstanding doctrines warning judges to defer to elected officials on matters where courts lack expertise. The Court, for example, has started wading into areas such as foreign policy, welfare policy, or the conduct of executive branch agencies where it historically displayed a great deal of restraint.

The second trend is that the political polarization that drives so much of American politics infects the judiciary as well. Often, when the Supreme Court stepped in to block a lower court’s decision against the Trump administration, that lower court order was handed down by Democratic appointees. Now that Biden is in office, Republican litigants seek out Trump appointees who treat many longstanding legal doctrines as if they were illegitimate.

This polarization forces the Supreme Court to resolve conflicts between two very different camps of judges. And the Court, with its 6-3 conservative majority, is hardly a neutral arbiter of these disputes. The growth of the Court’s shadow docket most likely reflects many justices’ impatience to sweep aside previous, left-leaning decisions that they have resented for their entire careers.

Decisions like Roe v. Wade.

The era of judicial humility, briefly explained

If you want to understand the last century of American constitutional law, you have to start with a nearly nine-decade-old conflict between President Franklin D. Roosevelt and the Supreme Court.

Beginning in the late 19th century, the Court handed down a series of decisions sabotaging the government’s power to regulate the economy, and especially the workplace. Often relying on flimsy or completely fabricated legal arguments, the Court struck down federal child labor laws and minimum wage laws. It stripped workers of their right to unionize, and prohibited many laws preventing employers from overworking their employees.

After Roosevelt took office, the Court became a persistent thorn in his side, striking down existing New Deal programs and endangering others with its narrow view of the government’s power to respond to the Great Depression.

It was so much a thorn that Roosevelt famously threatened to add seats to the Supreme Court to dilute the influence of anti-New Deal justices. (This proposal proved unnecessary, because the Court had secretly voted to overrule many of its previous decisions that had undercut liberal reforms when Roosevelt announced his court-packing plan.)

When vacancies did open up on the Court due to retirements or deaths, Roosevelt, to his credit, did not counter the conservative voices by stacking the Court with judges who would implement the New Deal from the bench. Instead, he filled the Court with justices who would largely get out of his way and allow the two elected branches to govern.

“The essential democracy of our Nation and the safety of our people depend not upon the absence of power,” Roosevelt said in his second inaugural address, rebuking the economic libertarians on the Supreme Court, “but upon lodging it with those whom the people can change or continue at stated intervals through an honest and free system of elections.” The Constitution, Roosevelt added, “did not make our democracy impotent.”

Roosevelt’s efforts to build a humbler, less activist Supreme Court culminated with the Court’s decision in United States v. Carolene Products (1938), a decision that probably did more to shape 20th-century US law than any other case in the Court’s history.

The thrust of Carolene Products is that courts should presume that most legislation, and especially legislation “affecting ordinary commercial transactions,” is constitutional and should be upheld. It then gave a few examples of cases where this presumption should not apply — if a law violates a “specific prohibition of the Constitution,” if a law undermines democracy, or if it singles out politically disadvantaged groups, such as racial minorities, for inferior treatment.

Thus, under Carolene Products, the Court would play a much smaller role in American society than it did in the first third of the 20th century. And when judges did intervene, they would frequently do so to help ensure that public policy aligns with the public’s will or to protect democracy.

Over the course of the 20th century, the Court handed down many decisions and important doctrines warning that unelected judges should play a limited role in a democracy — two more of which are worth mentioning here. The first is Chevron v. Natural Resources Defense Council (1984), which held that courts should frequently defer to federal agencies when those agencies exercise their statutory authority to regulate businesses and individuals.

Much like Carolene Products, the Chevron decision is rooted in the idea that courts have limited expertise, and even more limited legitimacy because federal judges are not elected. Although “agencies are not directly accountable to the people,” Justice John Paul Stevens wrote for his Court, the president who appoints agency heads is accountable through elections. And thus it is “entirely appropriate for this political branch of the Government to make such policy choices.”

Given a choice between having policies set by an executive branch whose leader is elected, or having those policies set by unelected judges, the courts should err on the side of democracy.

The Supreme Court has also repeatedly warned that judges should be extra cautious about “unwarranted judicial interference in the conduct of foreign policy.” Indeed, the Court reiterated this caution as recently as its decision in Trump v. Hawaii (2018), which upheld a version of Trump’s Muslim ban. Matters that “may implicate ‘relations with foreign powers,’” Chief Justice John Roberts wrote for his Court in Hawaii, require the United States to make judgments that are “frequently of a character more appropriate to either the Legislature or the Executive.”

When abortion opponents believed in judicial humility

Admittedly, Roe is a somewhat awkward fit within the Carolene Products call for judicial deference to elected lawmakers — why can’t such lawmakers, like the ones in Texas, ban abortion?

The best answer to this question comes from Ruth Bader Ginsburg, who, in a 1992 lecture delivered while she was still a lower court judge, argued that the constitutional right to an abortion ensures that women can participate equally in a democratic society. Women, Ginsburg’s lecture suggests, are a politically disadvantaged group who must have control over their reproductive lives in order to “participate equally in the economic and social life of the Nation.”

Even if you are unconvinced by this political equality argument for the right to an abortion, it is significant that Republican leaders did not initially react to Roe by demanding that the Court implement conservative policy to the bench. The most powerful opponents of abortion rights held Roe up as a cautionary tale against allowing judges to exercise too much power. At least in the 1980s, 1990s, and early 2000s, Republicans typically argued that the solution to Roe was to reduce the role of the judiciary in shaping American law.

President Ronald Reagan, for example, pledged to appoint judges who would show “judicial restraint.” President George W. Bush warned that judges who are too quick to make law are “a threat to our democracy, and it needs to stop.” In a 2006 address, Michael Chertoff, then a member of Bush’s cabinet and a former federal judge, praised the conservative Federalist Society as one of the nation’s most potent opponents of a too-powerful judiciary.

 “In large part because of the work that the Society and others have done,” Chertoff said of the organization that would go on to play an outsized role in choosing President Trump’s judicial nominees, “the claim for judicial modesty is sufficiently well-established that everybody understands, even the critics of that claim, that they have to take it seriously and they have to address it.”

On the Supreme Court itself, Roe’s most strident critic built his judicial philosophy around the idea that there must be constraints on judicial discretion to prevent the Court from doing things like protecting a right to an abortion. “The main danger in judicial interpretation of the Constitution,” the late Justice Antonin Scalia said in a 1988 lecture explaining his “originalist” approach, “is that the judges will mistake their own predilections for the law.”

The conservatives of this era, in other words, saw Roe as a reason to be fearful of judicial power. The idea that the Supreme Court would abandon decisions like Carolene Products and Chevron wasn’t even on the table. Conservative rhetoric was, if anything, even more inclined toward judicial humility than the rhetoric coming from their liberal counterparts.

The end of judicial restraint

But now the Court’s venerable doctrines of judicial humility are out of favor with the current Supreme Court, and especially with its most conservative members.

NFIB v. Sebelius (2012), the first major lawsuit attacking the Affordable Care Act, was also a direct attack on Carolene Products’ holding that judges should defer to Congress’s decisions regarding how to regulate the economy. It’s simply unimaginable that judges loyal to Carolene Products would have taken this lawsuit seriously because it asked the Court to unravel a law that comprehensively regulates the entire health care sector of the economy.

And, indeed, liberal judges who remained loyal to Carolene Products did not take this lawsuit seriously. Neither did several old school conservatives who still held onto the more humble values espoused in an earlier era.

Judge Laurence Silberman, for example, is a prominent conservative who received the Presidential Medal of Freedom from President George W. Bush. He rejected the plaintiffs’ arguments in a case that presented the same issues as NFIB, writing that they had no basis “in either the text of the Constitution or Supreme Court precedent.” As Silberman noted, the “most important consideration” in the lawsuits attacking Obamacare was Carolene Product’s warning that courts should “presume that acts of Congress are constitutional.”

Yet four justices voted in NFIB to repeal Obamacare in its entirety. Since then, Ginsburg (who voted to uphold Obamacare) died and was replaced by Justice Amy Coney Barrett — a critic of the Court’s decision in NFIB. If Barrett had held Ginsburg’s seat in 2012, it is likely that the Affordable Care Act would have been dismantled, and the Carolene Products framework along with it.

(Notably, the Roberts Court also rejects Carolene Products’ argument that judges should intervene when elected lawmakers seek to undermine democracy — as evidenced by the Court’s decisions blessing partisan gerrymandering and dismantling nearly all of the Voting Rights Act.)

Similarly, while 20th-century justices called upon judges to defer to federal agencies, the current Court is poised to revive a doctrine known as “nondelegation,” which could give the judiciary a veto power over any regulation pushed by such an agency.

Decisions like Chevron urged judges to defer to executive branch officials because these officials are accountable to an elected leader and thus have greater democratic legitimacy. In a 2016 opinion, however, then-Judge Neil Gorsuch flipped this reasoning on its head — claiming that it was better for unelected judges to set federal policy than to leave that decision up to the executive.

In Gorsuch’s view, judges are “independent decisionmaker[s]” whose job is to “declare the law’s meaning as fairly as possible,” while executive branch officials are “politicized” and eager to “to pursue whatever policy whim may rule the day.” Under Gorsuch’s approach, the fact that agency officials’ decisions are likely to be shaped by elections is a vice, not a virtue. It is better to concentrate power in the judiciary.

And a majority of the justices appear to agree with Gorsuch. In a dissenting opinion in Gundy v. United States (2019), Gorsuch called for reviving the nondelegation doctrine and permitting judges to veto federal regulations. Since then, a majority of the justices endorsed Gorsuch’s plan to give the Court this power.

The Court handed down one of its most surprising decisions parting ways from its earlier calls for judicial humility last month, in a shadow docket case reinstating Trump’s “Remain in Mexico” policy, at least temporarily.

That policy requires many people seeking asylum in the United States to stay in Mexico while they await a hearing on their asylum claim. It’s also not a policy that can be implemented unilaterally. The Trump administration secured Mexico’s cooperation before this policy took effect. The Biden administration will also need to get Mexico’s approval before it can reinstate this policy, which it abandoned early in the Biden presidency.

Contrary to the Court’s longstanding warnings about “unwarranted judicial interference in the conduct of foreign policy,” the Court effectively ordered the Biden administration to open negotiations with another nation, and to try to convince that nation to cooperate with a policy that Biden neither agrees with nor believes to be a good use of America’s influence with the Mexican government.

That’s a huge expansion of the judicial role, and one that could have profound implications for all of US foreign policy. If judges can order the executive to change its foreign policy without warning, how can other nations trust promises made by the State Department? And what is a foreign leader to do if they seek a concession from the United States that the judiciary disapproves of? Call up Brett Kavanaugh and negotiate with him?

The Supreme Court, in other words, is wading into areas where it possesses little expertise, and where it doesn’t even have the staff necessary to make informed decisions (the State Department employs about 13,000 foreign service officers to conduct diplomacy with other nations; an associate justice, by contrast, has four law clerks).

For decades, the Court warned other judges against deciding questions that the judiciary lacks competence to decide. Now, however, the conservative justices on the Court appear to believe that they are omnicompetent — and that they can even decide complicated political questions after very briefly considering a case that arrives on their shadow docket.

The Court is more partisan now than it has ever been

In 2010, President Barack Obama replaced retiring Justice Stevens with current Justice Elena Kagan. Stevens, who was appointed to the Court by President Gerald Ford, was the last Republican appointee to fairly consistently vote with the Supreme Court’s liberal bloc.

When Kagan took over this seat, that meant that the Court had a bloc of five conservatives who were all appointed by Republicans, and a bloc of four liberals who were all appointed by Democrats. (After Ginsburg’s death, conservative Republicans now control six seats.)

This alignment, where the surest measure of a justice’s ideology is the party of the president that appointed them, is a very recent development. In the past, the Court included liberal or moderate Republican appointees and conservative or moderate Democratic appointees. Roe was a 7-2 decision, with three justices appointed by Republican President Richard Nixon in the majority. Two of the dissenting justices in Bush v. Gore (2000), which handed the presidency to Republican George W. Bush, were appointed by Republican presidents.

The federal judiciary has become more of a partisan institution in a broad sense. As the two parties have polarized along ideological lines, they’ve developed very clear ideas about how they want judges to act. And they both now have sophisticated networks to help them identify ideologically pure judicial candidates.

Trump largely relied on the Federalist Society, which identifies talented, highly conservative lawyers before they even graduate from law school, to select judicial nominees. Though no single organization plays a similar role for Democrats, the typical Biden nominee is a civil rights lawyer, public defender, or other liberal-leaning lawyer with an Ivy League degree and elite legal credentials. At least in recent years, the two parties rarely err when they believe they’ve identified an ideologically reliable judge — and they are especially unlikely to err when making high-stakes Supreme Court appointments.

This partisan divide within the judiciary is apparent in the Court’s shadow docket cases. Of the 28 shadow docket cases identified by Vladeck, the law professor, in which the Court granted full or partial relief to the Trump administration, 21 either blocked a decision by a district judge appointed by a Democratic president or, when the last court to weigh in on the case was an appeals court, blocked a decision by a panel of judges where Democratic appointees were in the majority.

This trend, where decisions handed down by predominantly Democratic judges are treated with special skepticism by a Republican Supreme Court, is likely to accelerate in the future. Judges appointed at a time when the courts were less polarized step down and are replaced either by Federalist Society stalwarts or by lawyers recommended to a Democratic president by a liberal interest group.

And, as judges grow more partisan, the Supreme Court is poised to remove many of the doctrinal safeguards that used to prevent the judiciary from interfering too often with inherently political decisions.

It’s a terrible recipe for democracy. The one unelected branch of government is simultaneously growing less restrained, more partisan, and less likely to avoid questions that judges are not competent to decide.