The Supreme Court is in a crisis of legitimacy. How did this affect its decisions?

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A year ago, the six-justice supermajority plunged the Supreme Court into a legitimacy crisis. The justices ignored decades of precedent, adopted an extremist approach to constitutional interpretation, and shredded settled law in ways that directly affected Americans’ lives. Ethical lapses didn’t help. Public confidence in the Supreme Court fell to a historic low.

Now a year later, the supermajority’s second term has ended. What to make of it?

At times we could breathe relief. In Allen v. Milligan, Chief Justice John Roberts and four other justices agreed that Alabama’s racially discriminatory congressional maps must be redrawn. This was a genuine surprise, since Roberts had a career-long vendetta against the Voting Rights Act. Then Moore v. Harper rejected the “theory” that the Constitution gave state legislatures untrammeled power over federal elections with no checks and balances from state constitutions, courts, governors, or voters. The Brennan Center helped coordinate the dozens of friend-of-the-court briefs that said this notion was a crackpot idea. Both decisions were genuine wins for democracy.

In truth, neither of these were hard cases. The Court should not have heard them in the first place. And by the month’s end, the Court’s long-term direction remained clear and deeply disturbing.

A year ago, the Court overturned Roe v. Wade and radically expanded gun rights. This year, it ended affirmative action in college admissions. It also used the First Amendment to protect the right of a business owner to discriminate against LGBTQ+ couples. All these were incendiary goals, long-sought social issue triumphs for conservative activists. Now the Court is turning its attention to the interests of the paying customers.

In case after case, it has curtailed the government’s power to protect public safety, the environment, financial stability, and more — anything, in fact, that might trouble private business. A year ago the justices unveiled a new “major questions” doctrine, which said that government agencies could not act without explicit congressional authorization if the topic was “major.” Who decides what is “major”? The conservative justices of the Supreme Court and other judges. Roberts used the doctrine to help block President Biden’s student loan relief plan. Next term, starting in October, the justices will likely bury the Chevron doctrine, which recognizes the expertise of regulatory agencies like the Environmental Protection Agency.

In 2005, before Roberts was appointed, Jeffrey Rosen in the New York Times

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tapped him as an up-and-comer who would use the Constitution to rein in regulation on behalf of business. The notion was the “Constitution in exile” — the idea that the Court had made a grave error in 1937 when it stopped trying to limit government action, a product of its bruising fight with President Franklin D. Roosevelt over the New Deal. Case by case, with less drama than Dobbs, these justices will reshape government so it serves those who already have power in our market economy.

Still, 2023 was a bit more tempered than the incendiary year that came before it. Surely the justices have noticed the howling backlash. The Court’s credibility is its only source of power, and Roberts knows his colleagues can’t continue to squander it at the current rate. They do not seem to see their job as simply serving the Republican Party or Donald Trump. They seek a bigger goal: a fundamental conservative transformation of the country. With lifetime tenure, these unelected government officials, if they keep their cool, have a chance to do just that.

So the tumult will continue. The Court will be a central issue in the 2024 elections. (Florida Gov. Ron DeSantis is promising a 7–2 super-duper-majority.) The clamor for reform will grow, too, with each new revelation about justices palling around with billionaires. On July 20, the Senate Judiciary Committee will mark up legislation to force the Court to adopt a binding ethics code. We at the Brennan Center will widen our own push for reform.

The country is changing, growing more diverse, younger, and more open to government action. The Court continues to head in the opposite direction. This supermajority is just beginning its work, and the response to it is just beginning too.





Money and Politics: The Next Reform

Small donor public financing has emerged as the most powerful solution available for countering the outsize influence of wealthy donors and special interests. A new Brennan Center explainer details how small donor public financing programs work, their benefits, and which state and local governments have adopted them so far. Read more

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Reining In ‘Homeland Security Investigations’

The Department of Homeland Security’s investigative and intelligence arm has long evaded the public criticism faced by the agency’s better-known immigration and deportation divisions. But a multiyear Brennan Center study finds that Homeland Security Investigations has overbroad authority and lacks transparency, leading to repeated incidents of abuse and overreach. Our new report documents the problems and offers recommendations for reform. “It is past time for policymakers to limit HSI’s authority and establish stronger safeguards and accountability to prevent further abuse,” Mary Pat Dwyer and Rachel Levinson-Waldman write. READ MORE

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Redistricting Lawsuits to Watch For

Last month, the Supreme Court’s unexpected but welcome decision in Allen v. Milligan upheld crucial protection for communities of color under the Voting Rights Act. Citizens can still challenge discriminatory voting maps and election systems. Our new resource details how Milligan could affect 36 pending redistricting cases across the country. Read more

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Defending LGBTQ+ Rights in State Courts

Advocates have found early success in challenging the recent wave of anti-transgender legislation in federal district courts. However, unique provisions in state constitutions — such as equal rights amendments, privacy rights protections, and healthcare freedom amendments — may offer even better opportunities for pushing back against these laws. “If litigants pursue their claims in state court, state constitutions grant them the opportunity to develop robust, creative protections for LGBT rights at the state level,” assistant law professor Quinn Yeargain writes in State Court Report. READ MORE

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Closing a Fourth Amendment Loophole

Federal law enforcement agencies have been evading a requirement to get a warrant for cell phone location history and other personal information by buying it from data brokers. Government lawyers claim they’re not running afoul of privacy law because agencies are purchasing the data instead of compelling companies to hand it over. A new bipartisan bill would stop this large-scale violation of privacy rights. “This is an opportunity to close a Fourth Amendment loophole that allows the government to pry into the most intimate details of people’s lives without a warrant,” Noah Chauvin writes. READ MORE

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News

Andrew Garber and Robyn Sanders on the backlash against state lawmakers for expressing their views // GOVERNING

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Mekela Panditharatne on the impact of AI on elections // NATIONAL JOURNAL

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Robyn Sanders and Wendy Weiser on the fight over voting rights in North Carolina // NEW YORK TIMES

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Eliza Sweren-Becker on the Supreme Court’s rejection of the “independent state legislature theory” // MONTANA FREE PRESS

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