Part IV: Last Thoughts

I. Will this Supreme Court ever move from the far right and closer to the center? The ideological attitude of the court will not significantly change until at least two members of the far-right supermajority are replaced by centrist or liberal newcomers to the court. Currently four members of the court are within ten years of a justice’s average retirement age (78 years, 8 months). Three justices, Thomas (75), Alito (73) and Roberts (68), are members of the supermajority.[1] Barring an unforeseeable death or retirement, I don’t expect two such vacancies to open for at least seven years (2030), and quite possibly longer. Because it’s highly unlikely that the current frontrunner candidates for President will be President in 2030, who knows if or when the court will move closer to the center, but it’s a sure bet that the currently constituted supermajority will remain in control of the court for at least four more years, and quite probably many years more. So, then, you may be asking:

II. Do justices ever become more liberal or more conservative AFTER being elevated to the Supreme Court? In the nearly seven decades since the Warren Court decided Brown v. Board of Education in 1954, a slight majority of the three dozen justices who have served since then have stayed relatively close to the philosophical lanes in which they began their service on the court. A few conservatives became more conservative, but more than a few conservatives moved closer to the center. Three justices (Harry Blackmun, John Paul Stevens and David Souter) completely crossed over from the conservative side to the liberal side. Some centrists became reliable liberals, most notably Earl Warren. Lewis Powell, Sandra Day O’Connor and Anthony Kennedy, all center-right justices, on more than one occasion crossed over and sided with the liberals on some key hot-button cases and became known as the “swing vote justices.” Finally, some of the center-left justices became reliable liberals. If you’re keeping score, overall, those justices who changed philosophical lanes, be it only slightly or substantially, have tended to move leftward.[2] Interestingly, most of the justices who moved significantly to the left were Republican appointees.

               That said, the last justice appointed to the court by a Republican President and who lacked ties to the Federalist Society was David Souter, appointed in 1990. Thereafter, five of the six justices appointed by Republican Presidents are Federalist Society members.[3] Trump’s three appointees (Gorsuch, Kavanaugh and Barrett) literally owe their seats on the court to the Federalist Society, and particularly to Leonard Leo,[4] the dark money king, Trump’s first White House Counsel, Don McGahn, and Senate Majority Leader Mitch McConnell (all Federalist Society members).[5]

Why is the Federalist Society’s deep involvement so important? No justice has ever owed as much allegiance to a single organization as Thomas, Alito, Gorsuch, Kavanaugh and Barrett owe the Federalist Society. The organization, and its five justice-members, all share the same pro-originalism, pro-textualism creed. All of them are singing off the same ideological song sheet. They have a unified activist agenda, and they are determined to reinterpret some of the most critical parts of the Constitution. Any significant deviations by the “Federalist Society Five” from Federalist Society positions on key issues would be considered heretical and an affront to their benefactors. Accordingly, don’t look for any lane changes from the Federalist Society Five, and don’t expect Roberts to move any closer to the center. So, as Joseph told Pharoah in Genesis 41:30, “look forward to seven more years of famine.”

But, what about . . .

III. Congress? Can it do anything to dilute the supermajority’s power? The question is not whether it is able (it is), but whether it can get anything passed. Congress has the authority to either increase or decrease its size.[6] To do so, Democrats will have to retake the House and have a 60-vote majority in the Senate. That will not happen soon, if ever. Congress can impeach, but it takes 67 Senators to convict. Finally, Congress can impose term limits, but only if it adopts the “Active/Senior Justice Model.” Briefly, this model gives justices lifetime tenure, but only a limited tenure (probably 18 years) as an active justice. Thereafter, as a senior justice, they would serve by special appointment only.[7] This has two problems: first is getting it passed by Congress; second is the likelihood this Supreme Court would declare it unconstitutional.[8]

IV. What is the “Major Questions Doctrine”; is it new? It’s only been around for a few years, beginning when the Roberts Court struck down about a half dozen executive branch policies, all developed during Democratic administrations. Most notable were policies formulated by the EPA (coal plant emissions), CDC (vaccinating federal employees), and the Department of Education (student loan forgiveness). Since there is no mention of it in the Constitution, I’ll try to define it as best I can. The court has held that there are certain executive branch policies which are just too darn big and important (major questions) for Congress to delegate to executive agencies, and are therefore beyond the scope of Congress’ authority to delegate. Because the supermajority has implicitly aligned itself with the far-right wing of the Republican party and its goal of partial or total deconstruction of the administrative state, the Supreme Court has now positioned itself as a kind of gatekeeper for all administrative policy controversies that make it to the Supreme Court.

To me this doctrine smacks of a nefarious tinkering with the sacred doctrines of checks and balances and separation of powers. Shouldn’t Congress decide whether it delegated too much authority to executive agencies, and if so, leave it to Congress to fix it by amending the enabling statute? The implications of this doctrine are truly disturbing because it gives the unelected branch of government (the judiciary) the final word over policy questions an elected branch of government (legislative) has delegated to another elected branch of government (the executive). 

V. What is the “Shadow Docket” and should I be concerned about it? Yes, you should be concerned. The shadow docket, a euphemism for the court’s emergency docket, is the way many issues coming before the court, sometimes very consequential ones, are decided today, and it can be done without full briefing or oral argument, and without any written opinion giving the court’s reasoning. It’s hard to fully explain the shadow docket in this short piece, but I will say that the shadow docket has (1) doubled in size since Trump’s three justices joined the court; (2) affords little or no transparency; and (3) been criticized as being used in ways never intended, especially in highly sensitive cases.[9]

VI. Will new revelations about Clarence Thomas’ ethics problems have any effect? No. ProPublica has come up with an even longer list of unreported largesse from the ultrawealthy conservative class. The total amount is now up into the millions of dollars. Thomas now claims he flies in private jets for security reasons. It seems he and Ginni are safe sleeping in their RV in Walmart parking lots, but not in the first-class cabin of a commercial airliner. I suspect he flies “Air Crow” because it’s gratis, luxurious, and exclusive, as opposed to paying for a ticket on Delta Airlines and flying with the common people. Despite his gross ethical shortcomings, now exposed to disinfecting sunshine, he still will not recuse when he should. His policy on conflicts of interest will remain an empty page because that’s what his buddies are paying for. Moreover, impeachment is out of the question because Republicans will never force Thomas to leave his post. Regrettably, Thomas will remain a living stain on the Supreme Court’s ever-declining reputation for honor, integrity and rectitude.[10]

VII. Should we trust Chief Justice Roberts or our own eyes and ears? We can trust that he will do his best to maintain the institution of the court. He will endeavor to continue the traditions and practices of the court. He wants the court to hold its place in the American scheme of government. Unlike the executive and legislative branches which supposedly speak for the people, he wants the court to speak for the Constitution. He wants his court to be independent, free from politics and rigid ideology, collegial, and non-polarized. He wants his court to move thoughtfully and incrementally on legal matters of great importance to the American people. We can trust that Roberts believes all those things, but can he sell it, and can we trust him to succeed? So far, the jury is out.

Roberts strikes me as a genuinely good man. Behind closed doors, the nine justices are a somewhat collegial and congenial group, but that’s a small consolation to the public. What’s on the minds of an ever-growing number of both lay and professional observers is the extreme polarization brought about by a radically conservative six-member supermajority which has shown a bent toward ignoring or scornfully attacking long-held precedents, often using disrespectful language and displaying a sense of personal grievance, all the while refusing to allow sunlight into an institution badly in need of disinfecting.[11] Roberts is not doing a good job at preserving the public’s respect for the institution he so deeply cherishes. I don’t know if he has spent so many years cloistered in the ivory tower of the Supreme Court that he doesn’t realize that his house needs disinfecting, or he is just plain naïve.

Roberts is right when stating that disagreeing with a Supreme Court decision doesn’t automatically mean the decision is a bad one, but he can’t just say that and walk away satisfied that he’s done his job. When possible, he needs to build consensus across the ideological divides. He needs to apply the brakes on the supermajority’s wrecking crew attitude toward laws they seem anxious to change. He needs to be a stronger leader as the “first among equals” and herd his cats a little more effectively, particularly Thomas and Alito. He needs to promulgate a code of ethics for the Supreme Court, or stand back and let Congress do it. He needs to lead or get out of the way. Following his current path is not an option.

VIII. At least there’s one bit of good news: The Supremes, at least for now, have saved democratic elections. In the case of Moore v. Harper, by a six to three vote,[12] The Supreme Court ruled that popular elections, one person-one vote, and judicial review of elections still matter. The North Carolina legislature, with the tacit approval of the Republican National Committee, put forward what’s called the “Independent State Legislature Theory,”[13] claiming the Constitution gave state legislatures the plenary, exclusive and unreviewable power over federal elections. Had the NC legislature won, it essentially could partisan gerrymander, disenfranchise, and, regardless of the popular vote, send their own chosen electors to the Electoral College, and nobody could do nothing about it. Checks and balances and separation of powers: GONE. Democracy: EVISCERATED. Amazingly, Justices Moe, Larry and Curly want to keep the debate alive. I believe an eighth grader could read “American Civics for Dummies,” and immediately smell the rat the NC legislature was trying to throw into our democratic system. This was a very important victory.

               In conclusion, it seems this Supreme Court is going where no Supreme Court has ever gone before – not even the Warren Court – and the current supermajority isn’t going anywhere soon. Because of the iron grip the Federalist Society has on at least five of the six conservatives, we can expect little or no tendency of justices to change their philosophical lanes. For at least the next seven years, and possibly much longer, what you see is what you’re going to get. Stare decisis will become marginalized, or even ignored, as the justices obsessively parse and nitpick over the precise meaning of a word (until they find the definition they’re looking for), and liberally cherry-pick, or perhaps even conjure up, the most suitable eighteenth-century interpretation of the Constitution which they can find. (Remember, Jefferson and Hamilton couldn’t agree on the time of day.) We might see voting rights placed in greater jeopardy because the court will not stop politicians from choosing their voters rather than the other way around; we may see executive agencies weakened to the delight of polluters, anti-vaxxers and tax-avoiders; the line between church and state will become even blurrier with a heavier-handed nod toward Evangelical Christianity; and big business will be the overall big winner and the little guy, as usual, will be the big loser.

               When I started law school, the adage was that the Constitution is what nine old men say it is. Within it was a mixture of both skepticism and a homage to the wisdom of our elders. Now the adage seems to be that the Constitution is what a supermajority, firmly bound to a narrowly-drawn Federalist Society-inspired creed, want it to say. At least that’s becoming a public perception and the reason why so many are losing confidence in the Supreme Court.[14]

Supreme Court Trivia

Please see if you can answer the trivia question below. Use Reply to give me your answer.

By tradition, the justices are arranged in a certain way for the official portrait (see above), with the Chief Justice always in the center of the front row. Now, assume Justice Thomas has resigned (sigh), his seat became vacant, and the newest associate justice, Justice X, has been appointed. Now it’s time for the new portrait. One of the justices shown above will move from the back row to the front row.

Here’s the question: Who is it and where will he or she sit?

Extra credit: How will all members be arranged for this new portrait? (Begin front row, left to right, then back row, left to right.)

[1] The fourth justice nearing the average retirement age is Sonia Sotomayor, 69. The remaining three members of the supermajority (all Trump appointees) are in their 50’s and will probably still be around for at least another 15 – 20 years.

[2] No justice starting on the center-left ever crossed over and became a reliable conservative, although Byron “Whizzer” White (appointed by JFK in 1962), who, at the outset was a moderate, later on voted frequently with the conservatives.

[3] Roberts once had a brief connection to the Federalist Society, but he denies actually becoming a member.

[4] A former vice-president of the society and current co-chair of the board of directors.

[5] The three have been called “The Triumvirate.” Trump’s participation was necessary, mainly because he alone held the power to appoint. The idea that Trump personally vetted them and read their lower court opinions is laughable when considering his short attention span and aversion to reading.

[6] It’s done so in the past, but it’s been stuck at nine for the past 150 years.

[7] For example, replacing a justice who recuses from a case, or sitting in for a justice who is ill, retires or dies. The Brennan Center for Justice has a well-reasoned treatise on the subject at:

https://www.brennancenter.org/our-work/policy-solutions/supreme-court-termimits#:~:text=Congress%20can%20address%20many%20of,for%20creating%20and%20filling%20vacancies.

[8] If that happens, the only alternative is a constitutional amendment, which isn’t going to happen any time within the first half of this century, if ever.

[9] For a good article on the subject, I recommend Nina Totenberg’s The Supreme Court and the ‘Shadow Docket,’ at https://www.npr.org/2023/05/22/1177228505/supreme-court-shadow-docket. Stephen Vladeck writes on the subject in depth in The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Published by Basic Books, 2023.

[10] Interestingly, despite the public’s distaste for Thomas’ highly questionable ethics, he has the reputation of being perhaps the most likeable occupant of the Supreme Court Building. His colleagues like him, and that goes for everyone all the way down to the janitorial staff. How incongruous!

[11] Ironically, the adage “Sunlight is the best disinfectant” was coined by Justice Louis Brandeis over a century ago.

[12] Three members of the supermajority, Roberts, Kavanaugh and Barrett, voted with the three liberals.

[13] It could be called the Banana Republic Creation and Preservation Theory. ISLT first appeared in Chief Justice Rehnquist’s musings in Bush v. Gore. That should tell you something right there.

[14] I intend to say more about the court in future posts, and some of it may even be positive – well, only slightly.