The Supreme Court’s Naked Power Grab

The Supreme Court has become the most dangerous branch.

Once again, at the end of its term, the Supreme Court issued major decisions that will have significant ramifications for how government functions and for society at large. A common thread connects the rulings: the justices handed more power to themselves.

The biggest headline, of course, was the Donald Trump immunity decision. The complex ruling vastly expands the immunity from criminal prosecution that presidents enjoy—making them essentially above the law in many instances. The trial judge, Tayna Chutkan, must now hold a hearing on whether the allegations constitute a president’s “official acts.” If they do, the government cannot prosecute Trump for his conduct.

If she instead finds that some of Trump’s conduct surrounding January 6 was not pursuant to his official duties, then he can face criminal prosecution, but there will surely be additional appeals going all the way back to the Supreme Court. As Justice Ketanji Brown Jackson dissented, “A majority of this Court, applying an indeterminate test, will pick and choose which laws apply to which Presidents, by labeling his various allegedly criminal acts as ‘core,’ ‘official,’ or ‘manifestly or palpably’ beyond the President’s authority.”

The justices in the majority might say that the Court is apolitical, but the lengthy delay in deciding the Trump immunity case and the likely appeals that will follow the complicated ruling mean that Americans will not have the knowledge they need—whether Trump is guilty of election subversion—before they vote in four months.

The Court’s major ruling on administrative law is also a power grab by the justices. The conservative majority threw out a 40-year-old precedent that said federal courts should defer to an agency’s reasonable interpretation of an ambiguous statute. “Chevron deference,” named after 1984’s Chevron v. Natural Resources Defense Council, allowed agencies to rely on their expertise. But thanks to the Roberts Court, the federal judiciary can now second guess the experts and insert their own judgment about environmental rules, immigration policies, or any other matter within an agency’s realm—with the Supreme Court having the final say. As Justice Elena Kagan wrote in dissent, “The majority disdains restraint, and grasps for power.”

The story was much the same last year on voting rights. The Court was asked to rule that state courts cannot issue rulings under state constitutions about election rules, and though the Court refused to agree with the most extreme version of that theory—known as the “independent state legislature” doctrine—the justices still left the door open for it to overturn a state supreme court’s interpretation of a state constitution. If a state court “exceeds the bounds of ordinary judicial review,” the justices declared, the high court can intervene. But the justices neglected to explain what that test means. So, who decides if a state court has gone too far? The justices.

Indeed, many of the Court’s recent voting rights decisions have given the justices untoward power. Instead of robustly protecting the constitutional right to vote, the Court has created a test that balances a state’s interest in running an election with the voters’ interest in easy ballot access. The application of that test, which fails to protect the constitutional right to vote adequately, results in the Court usually deferring to state legislatures—except when it feels like scrutinizing an election law, such as a limit on the amount of money in politics.

Beyond specific cases, the justices have garnered more power and less accountability for themselves, refusing to adopt a binding ethics code. Every other federal judge must comply with a Code of Conduct—except Supreme Court justices. The justices issued their own nonbinding Code of Conduct last year, which, they said, “largely represents a codification of principles that we have long regarded as governing our conduct.” However, there is no enforcement mechanism, and the appearance of impropriety that saddles some justices continues. Justices Clarence Thomas and Samuel Alito, for example, refused calls to recuse from the January 6 cases even though legal experts said that their conduct—involving Thomas’s wife’s activities surrounding January 6 and the Alito family’s controversial flags—raised serious ethical questions.

Alexander Hamilton famously wrote that the Supreme Court would be the “least dangerous branch.” “The executive has the power of the sword and the Congress has the power of the purse. But the judiciary has “neither FORCE nor WILL, but merely judgment.” However, the Court’s recent judgments have given the justices unfettered power.

In a democracy, the people should reign supreme. Unfortunately, the Supreme Court’s power grab has made the justices, not the people, the most powerful actors in our nation.

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