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This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court. Keep up with all of our Supreme Court coverage and analysis by signing up for weekly email roundups. The best way to support our work—and unlock exclusive legal analysis—is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
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The Supreme Court term came crashing to a close in June with a barrage of decisions that, with a few narrow exceptions, further stripped away Americans’ right to govern themselves. On this week’s episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern convened Slate’s annual Breakfast Table to discuss the major themes of a term dominated by 6–3 decisions empowering President Donald Trump—and the justices themselves—at the expense of Congress, lower courts, and democracy. They were joined by three of the court’s sharpest, wisest critics: Sherrilyn Ifill of Howard University School of Law, Nikolas Bowie of Harvard Law School, and Steve Vladeck of the Georgetown University Law Center. An excerpt of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: I’ve heard a lot of pundits say this is the worst term since the presidential immunity decision. Some say it’s the worst term since Dobbs. I’ve heard it called the worst term since Dred Scott. And I don’t even know how one measures worst-term-ness, but I’m pretty sure the announcement of the birthright citizenship decision on the very last day blunted some of the impacts of how serious this term was. So I want to put aside the case that upheld a core constitutional guarantee by—shockingly—a 5–4 vote, and ask each of you: How bad was this past term in the aggregate?
Sherrilyn Ifill: Plenty bad. Very bad. And I actually don’t leave out the birthright citizenship case, because to understand how bad this term was, you can’t just count up the decisions. You have to also look at how the court decided these cases. What was the split? What license did the court take to get to the decisions that it made? To me, that’s what takes this term off into the stratosphere. Some of the decisions are catastrophic and terrible, but even the decisions that seem to be OK, much of the reasoning demonstrates that this court has separated itself from any sense of the need for consistency, for respecting stare decisis, for judicial restraint, for discipline, for unanimity—all of the things that we think of as virtues of judicial decisionmaking that would cabin judges from being able to exercise their extraordinary power in an abusive way.
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Nikolas Bowie: I agree with Sherrilyn that to understand how bad this term was, we need to have a sense of what the Supreme Court should be doing in the first place. The book that I’ve written with my colleague Daphna Renan, Supremacy, goes through the history of the court’s power—as well as what people thought of it—from abolitionists through the Civil Rights Movement to the present. We drew a lot of inspiration from the Congresses that wrote the 13th, 14th, and 15th Amendments after the Civil War. And one of their arguments at the time was that the role of the Supreme Court is to enforce federal law; it is not to defy federal law. The people who wrote the 14th Amendment wanted federal courts to go out and enforce that amendment against states or presidents or anyone else who would defy it. But they did not want the court itself interrupting or striking down Congress’ legislation.
I think that understanding—that the point of the federal judiciary is to enforce Congress’ conception of what the Constitution means—is a good way to make sense of the cases this term. It maps on pretty cleanly because a lot of the cases that people really like involve the court enforcing federal legislation. Think of Learning Resources, which enforced the federal law governing tariffs and said it did not permit the president to unilaterally impose tariffs on the entire planet. The National Guard statute that the court interpreted to say the president can’t just deploy the National Guard where he sees fit. Even the birthright citizenship case: Congress for years has interpreted the 14th Amendment to say basically everyone born here is a citizen. When President Trump disagreed, he was not just defying the 14th Amendment; he was also acting in defiance of these federal laws.
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But the real damage that the court has done this year involves taking federal legislation and just saying: I don’t care. The court looked at the Voting Rights Act—the most important civil rights statute in U.S. history—and said: Even though we understand what Congress meant by that statute, we’re just going to say it can’t be interpreted the way Congress intended. So now we have this crazy system where states are passing laws trying to make it as difficult as possible to vote; Congress has said not to do that, but the court is acting as if that statute doesn’t exist. The same is true of statutes protecting federal officials from being fired and preventing people from spending billions of dollars in elections. So we’re entering the midterms this fall in a dangerous place. All of these laws Congress has passed to protect democracy—laws that Congress thought were constitutional, that date back sometimes hundreds of years—basically don’t exist because five or six justices don’t like them. And the constitutional interpretation that the court is applying is not consistent or objective. It’s policy-driven, and that’s the real danger of judicial supremacy that the court has really unleashed this term.
Steve Vladeck: To pick up on Niko’s last point, there’s a shamelessness to how the court behaved this term. It’s almost like they weren’t even trying anymore to persuade people who weren’t already persuaded. The best example of that, to me, is the complete lack of humility in Chief Justice Roberts’ opinion in Trump v. Slaughter, and just how big of a hole that Trump v. Cook blew in it. So in Slaughter, the court said the president has to have all of “the executive power,” period, full stop, end of story. Therefore, he can fire everybody. And at the exact same moment, in Cook, the court said: Oh, but the Federal Reserve is different for all of these dubious historical reasons. You don’t have to be a law professor to understand the logical tension there, and yet Roberts really didn’t try very hard to persuade anyone that that was a reasonable distinction.
One other flashpoint is the Texas redistricting case in December. The court wrote five paragraphs to justify freezing a Trump-appointed district judge’s 200-page decisions about how Texas had acted with racially discriminatory intent in redrawing its maps last summer. Only two of those paragraphs were analysis. Then, in April, the court said: Now that we have the full case before us, we’re going to summarily reverse the district court for the reasons set forth in our five-paragraph scribble from December. Then the court released Callais and rushed to put these redistricting decisions into immediate effect. So it’s not just the bottom lines. It’s the hubris of this, the shamelessness of it. That, to me, is what makes this term different from the immunity term or the Dobbs–Bruen term or other catastrophic terms of the last 15 or 20 years. Because it’s almost like they don’t think they have to try to convince anyone anymore that there are principles behind these decisions.
Mark Joseph Stern: That all adds up to absolutely foundational restructuring of how government works. Shrinking congressional authority, as Niko pointed out. Sanding down judicial review. Disempowering blue states while letting red states go hog wild. Aggrandizing the executive. Diminishing the regulatory state. Disempowering lower courts.
Vladeck: It’s all about the Supreme Court’s power in particular. You have the court seizing power for itself while undermining federal district courts—who, by the way, are on the front lines of an unprecedented flood of really high-stakes, messy cases. You have judges across the ideological spectrum pushing back against this administration, and the Supreme Court’s like: Nope, we’re good. The court is disempowering Congress and lower courts while empowering the executive—but only as the only branch that’s left—while really preserving power for itself. The overarching theme here is a court that just doesn’t care. It’s not looking over its shoulder. It thinks it can do what it wants.
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