In her dissent in West Virginia v. Environmental Protection Agency, decided by the Supreme Court in June, Justice Elena Kagan blasted her conservative colleagues for their selective application of textualism. “The current Court,” she wrote, “is textualist only when being so suits it.” Now, in the aftermath of the Court’s most consequential term in decades, Stanford Law School professor Mark Lemley is out with a law review article elucidating what the conservative supermajority’s intellectual inconsistencies reveal: a single-minded commitment to consolidating political power in themselves.
In his article, “The Imperial Supreme Court,” Lemley argues that the Court’s recent terms have been defined by decisions that strip non-Court government entities of power before those entities can even attempt to implement a policy with which the justices disagree. “This result cannot be explained by any consistent judicial philosophy,” he writes. “The Court is happy to embrace conflicting philosophies to achieve the ends it wants in the case before it.”
In West Virginia, the Court invoked the “major questions” doctrine—a judicial creation that Kagan describes as a “get-out-text-free car[d]” for the conservatives—to stop the EPA from implementing a regulation aimed at reducing carbon emissions. The law, which allows the agency to select the “best” system for reducing carbon emissions, seemingly gives the EPA broad authority to fulfill its statutory mission. But the major questions doctrine provided the Court’s justification for usurping lawmaking power anyway, allowing it, as Lemley writes, to reject actions that “the agency implements in ways the Court doesn’t like.”
Lemley also breaks down the Court’s pattern of curbing states’ ability to regulate anything that relates to the relevant Fox-News headlines of the day. In response to California’s imposition of group gathering restrictions to limit the spread of COVID-19, for example, the Court carved out special protections for churches, rendering state officials powerless to limit the spread of disease as long as it takes place in a house of worship. As Lemley notes, this approach “withdraws from states power they have long held in areas of their core competency—health and safety, public education, and the design of their own governments.”
The Court did deign to expand state power on a few occasions—for example, when it abandoned the right to abortion care to the whims of the state legislative process in Dobbs v. Jackson Women’s Health Organization. What explains this discrepancy, though, is that the Republican justices trust Republican-controlled state legislatures to enact their shared policy preferences. Whether the “imperial court” consolidates power in the judiciary or in sympathetic state lawmakers, the result is the same: the furtherance of the GOP agenda. This strategy, Lemley writes, makes the Court “not only the most activist of any Court in the past century, but increasingly the locus of all legal power.”
Lemley also discusses the justices’ habit of limiting the power of lower federal courts to “remedy unquestionable constitutional violations” in Egbert v. Boule, and to “review agency immigration decisions even when they clearly violate the statute” in Patel v. Garland, both of which the Court decided this past term. These cases also highlight the limited circumstances in which the conservative supermajority is willing to share power with other branches of government: specifically, when those branches of government are controlled by their fellow conservatives.
In Egbert, the Court insulated federal immigration officers from Bivens lawsuits for misconduct, functionally handing agents of U.S. Customs and Border Patrol—the nation’s largest federal law enforcement agency—a get-out-of-court free card. And in Patel, the justices made it harder for immigrants to challenge the decisions of immigration judges, even if those decisions are legally and factually incorrect. Barring federal judges from reviewing cases like Patel’s will force thousands of immigrants to pay for the mistakes of harried immigration officials who will face no consequences.
Lemley wraps by joining the growing chorus of legal luminaries calling for consideration of “radical fixes to rein in the power of the Court,” including changes to the number and tenure of justices. This rhetoric is refreshing stuff from the legal academy, whose members tend to reinforce the legitimacy of the Court and the legal system it upholds. Lemley acknowledges the standard handwringing objections to reform—that it will turn the Court into another political institution—but concludes that the justices’ power grab has already rendered the status quo untenable. “That ship has sailed,” he writes.