Opinion Top court watcher: This term was marked by a broad expansion of judicial power
"Columnist Ruth Marcus spoke this week with University of Texas law professorStephen Vladeck, author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” This is an edited transcript of their conversation about the Supreme Court.
Marcus: If the best adjective to describe the 2021-2022 term is cataclysmic, what’s the best way to describe the term that just concluded?
Vladeck: Reaffirming, as in reaffirming that last term was not an aberration. The thread that ties together almost all of the cases of the term is just how much power they all contemplate the courts exercise. And so the student loan case [rejecting the Biden administration’s debt cancellation] is about expanding standing, which will expand the kinds of cases that can come to the federal courts, and about expanding the major questions doctrine in a way that, you know, is going to empower federal courts to be even more aggressive in reining in policies with which they disagree. Moore v. Harper [on the independent state legislature doctrine] is a profoundly court-power-expanding decision with regard to how much authority it’s going to give federal courts in future elections. For anyone who thinks that judicial restraint is an important principle, this term shows very little of it.
Let’s just go up to the 30,000-foot level. This was a term in which major damage was done to the law from a liberal point of view. At the same time, the damage could have been way worse. The things that I have in mind are the [Voting Rights Act Section 2] case, probably the most surprising win of the term with a win being defined as leaving the status quo in place; the independent state legislature case, because certainly people were fearing a major adopting of the theory; some of the other cases where people were braced for the worst and got less than that. Is that the way you see it?
I start from a proposition to always remember that these are the cases the justices chose to decide. And so against that backdrop, the fact that they took some of these cases and ruled against the more visibly, if not conservative, at least Republican position, is not necessarily a sign of any kind of moderation, as opposed to just maybe daylight between [Chief Justice] John Roberts, Amy Coney Barrett, Brett Kavanaugh, on one hand, and [Texas Attorney General] Ken Paxton on the other. I mean, you know, Texas was 0 for 4 [at the court this term].
The other thing I’ll say is with the exception of [the Voting Rights Act case], which is the outlier, almost all of the cases being portrayed as liberal victories, I really don’t think they’re a victory. They’re just not defeats. Yes, it could have been worse in the sense that the court could have embraced the democracy-destroying version of the independent state legislature theory. The court could have allowed Texas to challenge President Biden’s immigration enforcement priorities. The court could have struck down the Indian Child Welfare Act.
But the fact that the court is not all the way to the Fox News version of the contemporary Republican Party’s agenda doesn’t tell us much relative to the court. When the decisions that are hailed as consensus rejections of conservative positions are invariably not about the merits or are decisions that are rejecting the broadest view of a theory while actually embracing a narrower view, I have a hard time giving the Supreme Court a participation trophy for that. The current position is a position that would not have had five votes five years ago.
Do you have a theory about what’s happening on the court that caused these outcomes, which are not necessarily outcomes to be cheered, but bad consequences that we ducked?
I think the reality is that the chief justice and Justice Kavanaugh and Justice Barrett are fairly conventional conservatives, what we might call Bush conservatives. And it ought not to be surprising that Bush-type conservatives are troubled by some of the especially envelope-pushing arguments that are being advanced by plaintiffs and some states in these cases.
I’m curious about that, particularly with Justice Barrett. Clearly Justice Kavanaugh is personally and ideologically close to the chief; this term much more than last term that manifested itself in his votes. We had a case on the Clean Water Act in which he actually came out to the left of the chief. I’m a little less clear about where Justice Barrett falls.
There’s less data on her. But I often look at some of the votes on emergency applications as relevant data points, and she has moderated her behavior there. She voted to put the Texas social media law back on hold last year. I assume she voted for the mifepristone stay because [Justice Samuel] Alito criticized her in his dissent. She has an ability to speak for the Democratic appointees in some of these cases that you don’t typically see from Alito or [Clarence] Thomas.
You mentioned the emergency docket. It wouldn’t be a Steve Vladeck interview if we didn’t talk about how the court handled its shadow-docket authority this term.
Yeah, something changed. Only they know why, but they’ve adjusted their behavior. With the summer still ahead of us, there have been five grants of emergency relief [this term]. Three of those were uncontroversial or at least not closely divided. The other two were clearing the way for an Alabama execution and the Title 42 [immigration] order. That’s still more than we would have seen 10 years ago but it’s a lot less than we’ve seen at any point since the beginning of the Trump administration. It suggests that maybe the court is not quite as immune to public critiques as the justices might portray themselves to be.
We talked about two of the newer justices, but what did we learn about the newest justice, Ketanji Brown Jackson?
Boy, I think we learned quite a lot. Justice Jackson came out swinging in a way that I don’t know that we’ve seen a justice in their first term, maybe since Justice [Antonin] Scalia’s first term, the October ’86 term. Justice Jackson has, in no time at all, established her bona fides as a powerful voice for progressives on the court. It’s hard to think of a term where a brand new justice just was so visible. I think Justice Barrett probably had more of an impact on her first term just because of how her appointment shifted the ideological center of the court. That was never going to happen with Justice Jackson, but for a new justice whose appointment did not move the court at all, it’s a pretty remarkable performance in my book.
What did you make of the chief’s role this term? There was a lot of “he’s a chief in name only, he’s lost control of his court” chat before this term. Did this term tell us something different?
I think reports of the chief’s demise might have been exaggerated. This term did not have the same confluence of cases where he was most likely to align with the Democratic appointees. I think the real story of the chief’s term is just how many of the big majority opinions he kept for himself, an unusual amount of major opinions that he wrote, perhaps as a way of reasserting himself over the court.
We haven’t talked about the sideshow yet, but I also think his role in the ethics story is a no less important part of the term. Because he could have agreed to go testify before the Senate Judiciary Committee, he could have provided more conciliatory responses to the requests from [Chairman Dick Durbin (D-Ill.)]. And I think the attitude [Roberts] has pushed in his capacity as chief justice is very much a reassertion of the court’s institutional autonomy from Congress.
So a double power grab. He grabbed his own power in the court and power for the court from Congress.
Yep. A pretty good term for the chief. And I can’t remember a big ruling in which he was dissenting.
Do the affirmative action cases fit into your rubric of judicial assertion of power? Or do they reflect something different?
I don’t think it’s quite as overt as the student loan case or Moore v. Harper or 303Creative [the Christian website designer excused from having to create wedding websites for same-sex couples]. But I think it’s of a piece in the sense that there’s nothing restrained about it. If anything, there’s something more restrained about Justice Thomas’s concurrence, because that would just take [race] off the table entirely. The chief is almost worse, in the sense that he’s trying to shoehorn his analysis into a line of cases that it’s deeply inconsistent with. He creates a bit of a mush.
Is that unrestrained or it just intellectually dishonest?
Both? The problem is they’re related. The virtue of Justice Thomas’s concurrence is it is a clean categorical rule that would not lead to messy litigation fights. Whereas the chief’s opinion is only going to precipitate more litigation, because now some folks are going to point to the part where it says, “Well, if the applicant puts this in their essay, then you know, that’s fine.” And other folks are going to say, “No, but you can’t.” I just think that if this was how it was going to end, it should have ended in a way that was less chaotic.
Talk about next term. How is it shaping up? We have at least two very major questions coming up, one on gun rights and the other on Chevron deference[the rule that courts should generally defer to administrative agency’s interpretation of the laws they enforce].
I would add a third, is the administrative state still constitutional [challenging agencies’ use of administrative law judges in enforcement proceedings]? The court has granted a remarkably low number of cases for next term. So I think it’s really hard to say what next term is going to look like. You know, at least the [administrative state] and Rahimi Second Amendment cases strike me as additional candidates for the Bush conservatives to push back against the 5th Circuit [the ultraconservative appeals court that covers Texas, Louisiana and Mississippi].
The 5th Circuit had a terrible term at the court. If you just look at bottom lines in cases, they were 2 for 9 — two wins and seven losses, which is not good. And the losses were on standing in the private plaintiff student loan case, on standing in U.S. v. Texas [the immigration priorities case], on standing in [the Indian Child Welfare Act case]. The losses were ideological.
So, it’s possible that the early returns from the grants for next term are not the continuation of the conservative agenda that gave us [abortion, gun rights, major questions doctrine, affirmative action] etc., but rather more pushback against overreach in the lower courts. But I think it’s just way too soon to tell."
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