Supreme Contempt
These unsigned decisions don't offer any explanations yet they fundamentally reshape America. The Court is abusing its authority and dismantling our laws.
Photo Credit: Chip Somodevilla / Getty
Our great democracy has been brought to this . . . as far as the Supreme Court goes, We the People don’t even matter.
Just few years ago, the Supreme Court opined that big decisions are too important for a very public rule making process and instead must be fully debated by Congress. Now that same court has decided it can make momentous decisions in secret without even bothering to explain them to the American people. This is a radical and dangerous departure.
Back in 2021, when Joe Biden was president and the administration was enacting regulations to combat climate change, the Roberts Court legitimized a right-wing legal theory called the “major question doctrine.” They said the administration did not have the power to take regulatory actions that might be conceived to go beyond what Congress specified in law. So, for example, an administration might not be able to use the Clean Air Act to regulate the causes of climate change because the Act was passed before climate change was an issue.
This year, Roberts and his colleagues flip-flopped. Instead of insisting that Congress alone - and not the executive branch - should make major decisions of law, the Court now uses its emergency docket to issue unsigned and unexplained dicta permitting the largest expansion of executive power in American history. They went even further to say the president may act in ways that will likely be found illegal until such a times as the courts get around to deciding that those acts are illegal, which makes about as much sense as telling a man with a gun he is free to shoot someone until he is found guilty of the crime.
These decisions don’t just contradict the Court’s own ruling on major questions; they are out of step with the vast majority of jurisprudence in America. Between May 1 and June 23 lower courts ruled against Trump 94 percent of the time. 94 percent. Those rulings came from courts with judges appointed by both Republicans and Democrats. The Trump administration declared these losses emergencies and demanded relief from the Supremes. Never mind that losing in court doesn’t constitute a real emergency, Roberts provided that relief.
Are the robed oracles on the highest court such far superior jurists that they know the law better than 94 percent of the judges handling Trump-related cases? That seems unlikely. Did they learn something radically new about the law in just a few years that they would now repudiate their own major questions doctrine in favor of letting the executive branch decide not just major questions, but constitutional ones as well? That too seems unlikely. Anyway, if they did, they aren’t saying.
The Supremes overturned a lower court to allow Elon Musk and DOGE to access private data held by the Social Security Administration. Why? They didn’t say? What’s he doing with that data? They didn’t even ask.
They decided lower courts were wrong in order to allow immigrants to be deported to third countries without prior notice or due process. Then they doubled down and allowed Trump to ship eight people to dangerous South Sudan. Their reason? We The People apparently don’t need to know.
They overturned lower courts to permit the administration to rescind temporary protected status of immigrants from war zones. Why? Did they even ask if dropping unarmed civilians into war zones was necessary?
Again, they overturned lower courts to allow Donald Trump to close the Department of Education by firing its workers. Never mind that Congress created the Department and funds it programs. The court will not say whether Donald Trump’s action is legal. Instead, they are simply informing us that it cannot be stopped.
In none of these cases do the Supremes offer any explanations to the American people. Yet these unsigned decisions fundamentally reshape America. They are so out of the mainstream of American jurisprudence that they have drawn fierce dissents. I urge everyone to read those dissents. They are, in our era, what the declaration of independence was to our founders— a clear testament that we, the people, deserve the rule of law, that the law should be an instrument of freedom not of oppression, and that people, not kings, should be the ones making that law.
Unfortunately, there are many dissents to choose from. This week’s from Justice Sotomayor says,
The President must take care that the laws are faithfully executed, not set out to dismantle them. That basic rule undergirds our Constitution's separation of powers. Yet today, the majority rewards clear defiance of that core principle with emergency relief. Because I cannot condone such abuse of our equitable authority, I respectfully dissent.
There you have it. A Supreme Court justice, not an ordinary citizen like me, telling us the Court is abusing its authority and dismantling our laws.
None of us is safe with these folks in power.