The supermajority prepares to overturn another long-standing precedent.

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An updated edition of The Supermajority: How the Supreme Court Divided America

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was released today in paperback. Join us for a live virtual event on June 20 to hear Michael Waldman discuss the book and the current Supreme Court term. RSVP here.

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The Supreme Court term nears its end. Twenty-eight cases remain to be announced, an unusually high number. Brace for impact.

Already we know how this term will be remembered. At least, we can strongly guess.

To begin, the Court already took its most significant step by agreeing to hear Donald Trump’s bid for immunity from prosecution for his effort to overturn the peaceful transfer of power. By studied inaction, the right-wing justices engineered the Court’s most egregious intervention in the political process in memory. Maybe ever.

Legally, it’s an easy case: Trump is not immune from prosecution. Special Counsel Jack Smith asked the Court to quickly clear that up last year. The justices refused and scheduled argument for the last hour of the last day of the term. They will likely still rule against Trump at least in part. We will hear ringing oratory. “No person is above the law.” “Presidents are not kings.” But the justices have already granted Trump what he craved: time. They guaranteed that Americans will not get to see the evidence against Trump before casting their votes.

This term will also be remembered for the Court’s continued assault on government’s ability to protect public health, the environment, and fair markets. Legal conservatives have long sought to wind back the clock to 1937, the year the Supreme Court relented in its showdown with Franklin Roosevelt and let the federal government protect workers, children, and consumers. Legal reactionaries mark this as the beginning of a “Constitution in exile.”

In West Virginia v. Environmental Protection Agency in 2022, the supermajority invented a new “major questions” doctrine. Regulators cannot act — in that case, on climate change — even if they have statutory authority to do so if the topic is too, well, “major.” That capacious term is not defined. It seems to mean that if a Federalist Society judge doesn’t like a regulation, it is “major” and thus null.

This term the justices will almost certainly undo what’s left of “Chevron deference” in a case called Loper Bright. For four decades, judges, who are not subject-matter experts, have deferred to the decisions of regulators, who are hired for their expertise, when a statute doesn’t provide clear direction. Chevron is the most cited administrative law case in Supreme Court history, and it was once beloved by conservatives. (It dates from a time when Justice Neil Gorsuch’s mother

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was the rambunctious right-wing administrator at the EPA. It aimed to protect Reaganite officials from meddling liberal judges. Sounds like sci-fi, I know.) The influence of Chevron has been waning since its great champion, Justice Antonin Scalia, died. But lower courts still extensively rely on it, and its final undoing, plus the invention of the major questions doctrine, will make it much harder for government to act.

To be sure, in other cases the Court may throttle back some extreme doctrines. The Rahimi case, for example, confronts the implications of the new and nutty idea that gun laws are only allowed if they follow “history and tradition,” meaning the gun laws of the 1790s. (The defendant engaged in domestic violence, a practice that was legal back then.) On other regulatory matters, the Court has rejected some of the extreme notions from the U.S. Court of Appeals for the Fifth Circuit, the rootin’-tootin’ Texas-based court that routinely takes right-wing tweets and turns them into judicial rulings.

When the justices announce these decisions, we may hear purring praise about the new moderation of the Court. Don’t believe it. It has already showed itself to be not just a conservative Court, or a Republican Court, or a Federalist Society Court. For the first time, it showed itself to be a MAGA Court.

The Court’s credibility has collapsed. Public trust is near the lowest level ever recorded in polls. Justice Samuel Alito’s explanation of why he flew insurrectionist flags

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at two homes has been shredded. (“My wife is fond of flying flags” will not make it into the annals of memorable quotes.) Justice Clarence Thomas, meanwhile, just disclosed that he took more in private gifts and funds than the rest of the justices put together.

While the scandals pour forth, the Supreme Court — nine unelected officials, installed for a lifetime — continues to remake American life and law at breakneck speed. This year it’s government regulation and the presidency. In the past it has been reproductive rights and the Second Amendment. Decades of reactionary social policy crammed into a few days every summer. We take it for granted that every June, we will wait breathlessly to find out what their rulings are, and what kind of country we will live in.

What could come next? Donald Trump may win the election. His top policy advisers call for a “post-constitutional era

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.” Is there any more un-American ambition?

We need a strong Supreme Court ready to stand up for constitutional values and the rule of law. Instead, it seems, we have one in thrall to right-wing power politics. Those of us girding to battle for the rule of law already have all the evidence we need: we cannot rely on the Supreme Court.


Lessons from Trump’s Conviction

The verdict against Donald Trump in New York was historic not only because it was the first conviction of a former president. It also shattered the popular myth that he always escapes accountability, reaffirming the fundamental American principle that no one is above the law. Special Counsel Jack Smith, who has two pending federal indictments against Trump, can learn from this success. Perhaps the most important takeaway: the Manhattan district attorney’s team “treated Trump like any other defendant. The special counsel should do that too,” writes former U.S. attorney Joyce Vance. Read more

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Laws Against Unfounded Voter Challenges

Most states allow residents to challenge the eligibility of other voters. Increasingly, election deniers are using digital tools and unreliable data to submit these challenges on a massive scale, putting eligible voters at risk of disenfranchisement. The practice can also overwhelm election offices. Fortunately, numerous federal and state laws protect against improper challenges. New resources the Brennan Center produced with All Voting Is Local detail existing guardrails in key states. READ MORE

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Paper Barriers to Political Participation

A new survey by the Brennan Center and its partners found that more than 9 percent of voting-age Americans don’t have proof of citizenship readily available, a number that’s even higher for Americans of color. These statistics are worrisome, as some states are pushing proof-of-citizen requirements for voter registration to prevent noncitizen voting — a phenomenon that is already illegal and vanishingly rare

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. “Requiring proof of citizenship would solve nothing, but it would create major barriers to registration for eligible voters, especially those who already face disproportionate barriers to participation in our democracy,” Kevin Morris and Cora Henry write. Read more

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Why We Need Connectivity at the Polls

Reliable internet access at polling places can allow quick and convenient voting, yet rural areas often have little or no internet access. A new resource by Arizona Assistant Secretary of State Keely Varvel and her coauthors explains how federal funds to address this disparity and develop broadband infrastructure in underserved communities can expand rural voting access. Read more

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AI’s Influence in Elections Around the World

More than 50 countries are holding elections this year, and governments must contend with how new artificial intelligence technologies will affect political campaigns for better and worse. Policymakers must work with civil society to address AI-related threats, such as deceptive deepfakes and cyber vulnerabilities in election systems. However, they must strive for “nuanced approaches that focus on the worst impacts without unduly limiting political expression,” Shanze Hasan writes. Read more

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Spotlight on State Constitutions

Almost 50 years ago, Justice William J. Brennan Jr. urged state courts to go beyond the federal Constitution in protecting individual rights and liberties. He sparked a renewed focus on the promise of state constitutions and state litigation — a subject explored in detail at a two-day symposium of legal scholars, state judges, and advocates that the State Court Report organized earlier this year. In the wake of Supreme Court decisions overturning abortion rights and weakening protections for fair maps, voting rights, and the environment, “Justice Brennan’s call to action has never been more salient,” Brennan Center President Michael Waldman says in a new article in the New Yorker. READ MORE

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Coming Up

VIRTUAL EVENT TOMORROW: What Originalism Means for Women

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Wednesday, June 12, 3–4 p.m. ET

In a few short years, the Supreme Court has upended American law, pursuing a regressive agenda cloaked as a return to the Constitution’s supposed original meaning. The Court’s embrace of originalism poses special risks to women. The 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, exemplifies this threat. The majority failed to grapple with how legal and cultural gender norms have shifted since the founding era.

Join us virtually for a panel discussion with Madiba K. Dennie, author of the new book The Originalism Trap

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; Khiara M. Bridges of UC Berkeley School of Law; Emily Martin of the National Women’s Law Center; and Alicia Bannon of the Brennan Center and State Court Report. They will explore the 2023–24 Supreme Court term through the lens of what it means for half the population. RSVP today

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Produced in partnership with the Birnbaum Women’s Leadership Center


VIRTUAL EVENT: A Politicized Supreme Court Is Remaking America

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Thursday, June 20, 3–4 p.m. ET

The new paperback edition of The Supermajority

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, by Brennan Center President Michael Waldman, includes an added chapter on the aftermath of the Court’s historic 2021–22 term, major decisions in the 2022–2023 term, the ethics scandals that have ensnared Justices Thomas and Alito, and the impact of divisive rulings on the Court’s public standing. Join us for a live virtual conversation between Waldman and the Brennan Center’s Kareem Crayton on the threat the current Court poses and how the most recent term’s decisions have built on or changed the Court’s previous rulings. RSVP today

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Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Mekela Panditharatne on artificial intelligence regulation // KCBS RADIO

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Andrew Garber on the repercussions of new state bills against noncitizen voting // TALKING POINTS MEMO

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Gowri Ramachandran on increasing threats to elected officials // KQED

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Brianna Seid on the history of jury trials // HISTORY

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Feedback on this newsletter? Email us at [email protected]



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