Conversation
-
The Unrestrained Power Of The Roberts Majority
sourceThis series addresses the high crimes and misdemeanors committed by the Roberts Majority of SCOTUS. Reforming the Court must begin with impeachment of these six. They will strike down any law restricting their power. This should be a campaign issue for every Democrat.
Historical restraints on SCOTUS power
Over the centuries SCOTUS has adopted guardrails that restrict their claimed unlimited reach. Self-regulation helped it maintain its facade as a court rather than as an unchecked super-legislature. That facade held up until recently.
Almost every discussion of public attitudes towards SCOTUS begins with the statement that most people approve or disapprove based on the outcome of specific cases like Dobbs, the abortion case. Republicans generally like Dobbs so they approve of SCOTUS, and almost all Democrats and most independents despise Dobbs and have unfavorable attitudes. For example in this article reviewing two recent books on SCOTUS we are told:
The Supreme Court is like ranked-choice voting or Jdate: how you feel about it depends on whether it’s delivering what you want.
But that’s not the only criticism of SCOTUS on offer. Most reasonably independent legal academics criticize decisions on technical grounds, grounds that are often not familiar to non-specialists. Many of these fall under the heading of justiciability, which includes standing, ripeness, and subject matter jurisdiction. The Court has historically deferred to lower courts to determine the facts of the cases it reviews, even thought the Constitution grants it the power to determine both law and facts. Art. II §2. It has set up a number of rules that it and lower courts follow, such as the requirements for issuance of interim relief pending final decisions, and the importance of precedent.
Legal academics most often criticize opinions of the Roberts Majority on these grounds. For example, much of the criticism, including my own, of Dobbs is based on its outright rejection of precedent acknowledged by all of the members of the Roberts Majority, and expressly acknowledged, misleadingly as it turned out, by the Trump appointees.
Examples
1. Standing. Biden v. Nebraska is the student loan case. Biden granted partial forgiveness of certain student loans to aid recovery from the national emergency inflicted by COVID. Several Red states sued to stop it. Only one had standing, Missouri. Years ago Missouri chartered Mohela as a public corporation to service student loans. The directors of Mohela are appointed by the government of Missouri, and it files regular reports with the state. It has the authority to pay dividends to the state if its directors choose, but It never had. First Missouri asked Mohela to file the lawsuit, but it refused, perhaps because winning would harm borrowers. Then Missouri sued in its own right.
The Roberts Majority claimed that this satisfied the requirement for standing. Biden’s plan might cost Mohela servicing income, and that was harm to Missouri, because, Roberts says, Mohela is affiliated with the state. Of course, Mohela has its own interests, and it chose not to sue. If Missouri didn’t like this, it could have fired the board and put in a compliant board. But it didn’t. This just seems stupid. But it was necessary so that the Roberts Majority could strike down Biden’s efforts to help regular people on the spurious grounds of the major questions gibble-gabble.
2. Ripeness. A case is not ripe if the alleged injury rests on contingencies that may or may not come about. Consider the case of 303 Creative, LLC v. Elenis. Plaintiff is a web site designer. She claims that she wants to design web sites for weddings but doesn’t want to offer her services to same-sex couples because of her “religious” views. She sues a Colorado agency that handles civil rights matters on the ground that she faces a “credible threat” that it might sue to force her to violate her rights to discriminate. This case is obviously not ripe. The agency hasn’t done anything and might never. Gorsuch wants to rule on this case, so what he calls a credible threat is enough to make the case ripe.
3. Standing and ripeness: In Trump v. California, , entered August 24, 2026, the Roberts Majority granted a stay of an injunction barring enforcement of a proposed US Postal Service rule on mail-in ballots generated to comply with a Trump executive order. The plaintiff states filed suit in April, 2026, shortly after Trump’s executive order. The USPS issued a proposed rule June 2, to take effect August 21. The district court found that the executive order and the proposed rule interfered with the constitutional power of the states to administer elections, and enjoined implementation. The Roberts Majority stayed the injunction, asserting that the states lacked standing because there was no rule when the suit was filed. In addition the case was not ripe because whether the USPS would issue a final rule is “conjecture”.
The plaintiff states argued that they’d have to begin planning at once to enable them to comply, but the anonymous writer says
But the States “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Clapper, 568 U. S., at 416. And the hypothetical future harm that the States fear—the Secretary’s implementation of §2(a)—is far from “certainly impending.” Ibid. By allowing the States “to bring this action based on costs they incurred in response to a speculative threat,” the District Court “improperly water[ed] down the fundamental requirements of Article III.”
So, a proposed rule with an effective date a few weeks out is not a credible threat, but a speculative threat.
The rule took effect. The lower court quickly entered an injunction against enforcement, and the case went back to SCOTUS. This time the Roberts Majority tossed it in three sentences, again per curiam. Alito and Thomas publicly dissented. Liz Dye of Public Notice gives a nice description of the “Fox News Grandpas” absurd opinion.
3. Fact-finding. Kennedy v. Bremerton School District shows the willingness of the Roberts Majority to make up its own facts. This is the case of public prayer led by a football coach after games. Here are the facts about those prayer sessions according to Gorsuch:
Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks. Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied.
Here’s how Sotomayor describes the facts in her dissent:
The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location.
Sotomayor put this picture of one of these prayer events in her dissent:
For comparison, check out the facts found by the district court after a trial on the merits, and confirmed by the Ninth Circuit. Here’s a sample of the facts.
Kennedy’s religious beliefs required that his prayer occur on the field where the game was played, immediately after the game concluded.
Kennedy’s testimony is incredible, and nothing this guy says can be believed. The claim that this is about religion is a nonsensical sham, and the case should be dismissed because the School District properly enforced its rules and its contract. A competent SCOTUS would have dismissed the case as certiorari improvidently granted. The Roberts Majority has an ideological stake in the case, so competent judging is irrelevant.
Conclusion
There are many other cases in which the Roberts Majority ignores the guardrails that have helped the Court maintain its legitimacy as it undoes our democracy. These six defy those guardrails in pursuit of their ideological goals.
Impeach all six.
The post The Unrestrained Power Of The Roberts Majority appeared first on emptywheel.