The GOP’s triumphant attitude is neither premature nor overconfident. Four months out from November, the party has abruptly prevailed in many of its most important political battles, albeit in the cold, technical prose—you might even call it “bloodless”—of judicial opinions. The Supreme Court’s conservative supermajority has, in recent weeks, restructured American democracy in the Republican Party’s preferred image, fundamentally altering the balance of power between the branches and the citizens themselves. As the GOP became the party of coup denialism and unreconstructed Trump cultists, so too, finally, have the sober movement conservatives at the high court.
In the course of its most recent term that conservative supermajority has created a monarchical presidency, awarding the chief executive near-insurmountable immunity from accountability for any and all crimes committed during a term in office. It has seized power from Congress, strictly limiting lawmakers’ ability to write broad laws that tackle the major crises of the moment. And it has hobbled federal agencies’ authority to apply existing statutes to problems on the ground, substituting the expert opinions of civil servants with the (often partisan) preferences of unelected judges. All the while, the court has placed itself at the apex of the state, agreeing to share power only with a strongman president who seeks to govern in line with the conservative justices’ vision
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To grasp the gobsmacking scope of this shift, start with Monday’s decision on presidential immunity and work backwards. In Trump v. U.S., the Supreme Court’s conservative supermajority invented a new rule out of whole cloth, unmoored from any known constitutional text or principle, handing the president almost total immunity from criminal charges for his actions in office. Chief Justice John Roberts’ opinion purported to distinguish between “official acts,” which can’t be punished, and “unofficial acts,” which can. But Roberts also stacked the deck in favor of the president at every turn: He barred prosecutors from introducing evidence of “official acts” to prove culpability for “unofficial acts” and prohibited any inquiry into the president’s motives when “dividing official and unofficial conduct.” The result is a vast shield against prosecution that will hamstring prosecutors at every turn even if they decide that it’s somehow worth it to try to surmount the hurdle of immunity and attempt to reach the trial stage. Under this new dynamic, most prosecutors likely won’t even bother, no matter how horrific a president’s criminal actions may be.
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Shortly before handing down Trump v. U.S., the court issued Loper Bright Enterprises v. Raimondo, overturning a four-decade-old ruling that served as the basis for some 18,000 lower court decisions. Loper Bright abolished Chevron deference, the rule that federal courts should defer to agencies’ reasonable interpretations of ambiguous laws. By doing so, it seriously curbed Congress’ latitude to enact laws that address a serious problem then allow agencies to fill in the details and gaps. The ruling does not, as its defenders on the right like to insist, simply force Congress to “do its job.” Rather, it overrides lawmakers’ prerogative to exercise legislative power in a way they believe is necessary to protect the people from harms. It enshrines into law a specific conservative conception of proper government, overriding Congress’ choices without any constitutional mandate. And, of course, it replaces the opinions of agency experts with the political proclivities of life-tenured judges who may lack the most basic grasp of the facts. For good measure, the same conservative supermajority then erased a statute of limitations that might have staunched the coming tsunami of challenges to federal regulations.
Loper Bright boils down to a straightforward proposition: The Supreme Court’s Republican appointees are sympathetic to wealthy individuals and corporations, so they will contort the law to help them. That’s the story of other key decisions this term. In SEC v. Jarkesy, the conservative justices sabotaged agencies’ ability to bring civil penalties against lawbreakers, devastating their enforcement powers across the board. In Ohio v. EPA, they let polluters block vital environmental protections by second-guessing regulators’ scientific judgment. In Snyder v. U.S., they let local officials accept bribes from wealthy benefactors in the form of (wink-wink) “gratuities.” In Moore v. U.S., they deployed gratuitous rhetoric to preemptively stack the deck against a future wealth tax. In Garland v. Cargill, they let the gun industry continue making bank off de facto machine guns. Meanwhile, the court declared open season on the rights of everyone else: racial minorities, immigrants and their families, the homeless and disabled, women in need of emergency abortions—all were denied legal protections bestowed by the Constitution and Congress this term.
