The Chaos of the Supreme Court’s Last Term—and What May Be Coming This Time

Every Autumn, Supreme Court analysts provide the public with cogent summaries of the last term and astute prophecies about what will happen after the First Monday in October when the nine justices gather for the new term.

I am as pompous as the next pundit, but in 2024, writing that kind of piece would feel wrong. Understanding the last term (if that is possible) is not a matter of extracting doctrine from jurisprudence but of sifting through rubble. Predicting the coming term seems like piecing together the anatomy of a dinosaur from a fossilized tooth and an anklebone.

Like the rest of American society, the Supreme Court is caught in currents it can’t predict or control. None of us knows, in the words of The Texas Chainsaw Massacre, who will survive and what will be left of them.

If there is any rational explanation for the chaos that was October Term 2023-24, I think—based on no inside information—it is that the justices now know that their own miscalculations have exposed them to danger and are terrified of what might happen next. The flood of decisions last June displayed more spasm than strategy. In a new term that already promises important culture-war decisions on transgender medical rights, “ghost guns,” and attempts by red states to censor material “harmful to minors” on the Internet, it is hard not to suspect that political calculation lay behind the last term’s spasms—and that next term, with the presidential election safely behind the Court, may not see a reduction in panic and a return of calculation in the Court’s decisions.

It is easy to see why there might be panic at One First St. N.E. The Court’s operations are so enfeebled that the vaunted “investigation” of the leak of the draft abortion opinion in 2022 came literally to nothing (perhaps because the “investigators” did not dare interview the justices under oath). The justices display ostentatious contempt for the institution’s norms, engage in financial dealings that smell to heaven, and openly scorn once-sacred canons about conflict of interest, recusal, disclosure, and the appearance of impartiality. And the Court itself, once bound by an internal ethic of confidentiality, has now begun to leak—less like the Court of past times and strikingly more like any other institution whose functions are not judicial but political and legislative. Witness the New York Times account of Chief Justice John Roberts’ maneuvers to seize control of the major opinions of the last Term.

“The Supreme Court,” as Senator Sheldon Whitehouse, the Rhode Island Democrat, told the justices in an unprecedented amicus-brief-cum-scolding, “is not well.” Indeed, it is sick enough that even President Joe Biden, who of all major political figures has most resolutely opposed genuine institutional reform, proposed substantial changes to the Court’s procedures and staffing in July.

Most ominously, the Supreme Court, for the first time in nearly a century, has forfeited the approval, and perhaps even the reluctant tolerance, of the public it serves. The new majority’s act has worn thin, and restoring the Court’s luster will be daunting.

The Court has moved from crisis into multiple organ failure. It may be suffering a crippling loss of credibility, something like what happened after 1857’s pro-slavery opinion in Dred Scott convinced the public that the Court had become literal enemy territory.

That perception would be fitting today as it was in 1860. For over a decade, American democracy has had no enemy more determined and resourceful than the conservative majority on the Supreme Court. It has warred ceaselessly on the Voting Rights Act; it has greenlighted partisan gerrymandering; it has assiduously worked to eliminate any barrier between massed wealth and political domination; it has set its face ruthlessly against any legal proceeding that would require the powerful to account for their actions to the powerless. But now that its authoritarian project stands on the brink of success, the Court seems suddenly worried that the forces it has nurtured may turn on it. As I read between the lines, the result is a swirling panic, an agonized alternation between the poles of arrogance and terror.

The bravado is patent. The Court this term took a wrecking ball to the power of Congress and administrative agencies: in Securities and Exchange Commission v. Jarkesy, it transferred financial regulation from the Securities and Exchange Commission (a critical New Deal reform designed to prevent a future stock market crash) to federal courts; in Starbucks Corporation v. McKenneyit continued its effort to wrest labor relations from another Franklin Roosevelt jewel, the National Labor Relations Board; in Ohio v. Environmental Protection Administration, it drew a target on efforts to tame interstate air polluters; and in Loper Bright Enterprises v. Raimondo, itused a dispute over observers on fishing boats to take from administrative agencies at large the power to interpret their own statutes.

Grasping for sweeping power is a curious move for an institution that cannot even manage its small staff, follows no binding code of ethics, is unable to provide any explanation for its own failures, and lacks the basic scientific literacy needed to tell the difference between a deadly pollutant (nitrogen oxide) and laughing gas (nitrous oxide). It is as if a tractor-trailer mechanic should scrub into an operating room and tell the surgeons, “I’ll take it from here.”

Beneath the swagger, however, the term’s opinions also betray a definite uneasiness—an anxiety akin to that of the babysitter in a slasher movie who hears a noise in the cellar. The Court has badly overplayed its hand in its other major project, declaring victory for one side in the culture wars. At the time it decided Dobbs v. Jackson Women’s Health Organization, the Court praised itself as bravely defying mere public opinion: “[W]e cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Justice Samuel Alito explained airily.

Perhaps so. But I think the Justices had expected a few days of bad headlines followed by a return of the public adulation they regard as their due. Instead, the Dobbs sparked a deep and (so far) sustained sea-change in American politics, one that blunted Republican hopes in 2022 and bids fair to do something similar in a few weeks. In four states—California, Michigan, Ohio, and Vermont—voters have passed citizen initiatives anchoring abortion in their state constitutions. In three—Kansas, Kentucky, and Montana—they have rejected initiatives aimed at cutting back abortion rights. This fall, in no fewer than ten states–Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nebraska, Nevada, New York, and South Dakota —voters will have a chance to repudiate Dobbs. That prospect has spooked Republican strategists aiming to reinstall Trump in the White House. For a Court majority that has worked devoutly to guarantee permanent Republican rule, Dobbs seems to represent a sobering miscalculation. Polls show abortion rights to be overwhelmingly popular—more popular by far than the Court that tried to do away with them.

Thus, after assuring the people that it cares not a button or fig for what they think, the Court last term became strangely reticent about abortion rights. In two high-profile cases this term, the Court confronted the implications of Dobbs; in both, the valiant majority hid in the judicial closet, shouting, “Nobody home!”

In a case called Food & Drug Administration v. Alliance for Hippocratic Medicine, a hard-right Trump judge had forbidden the sale of mifepristone, one of the pair of drugs that together produce a medical abortion. This medication has been FDA-approved for a quarter-century and has an excellent safety record. It is a vital part of a safe, at-home procedure that accounts for well over 50 percent of abortions in the U.S. The case offered the conservative majority an ideal opportunity to carry forward the logic of Dobbs. Remember how broadly Alito’s opinion rhapsodized about the many reasons to ban abortion:

respect for and preservation of prenatal life at all stages of development,; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.

In the same opinion, Alito was unable to find a single countervailing interest—not rape, not incest, not the health or even life of the mother—that might require an exception to a legislative abortion ban. In the world Dobbs made, logic suggests that even safe abortion drugs must be constitutionally worthless; in the new post-“administrative state” legal system, the mere fact of FDA approval would not shield such pharmaceuticals from the disapproval of five conservative judges.

Offered this chance to reaffirm Dobbs, however, the majority blinked. It discovered—with the Shocked! Shocked! tone of Casablanca’s Captain Renault—what had been evident from the start: that the plaintiff in the mifepristone case, a hastily constructed “association” called the “Alliance for Hippocratic Medicine,” could not show any injury or the prospect of injury, to itself or its members.

The conservative majority is pretty liberal with standing when deciding a case; in agenda cases, the required “injury in fact” is largely honorary, like the title “Colonel” in Kentucky. (Remember the Christian website designer who had claimed injury because at some point she might go into wedding website design and a gay couple might try to hire her, and when she refused, they might complain to the Colorado Civil Rights Commission, and the CRC might refuse to exempt her from the law, and so the Court simply had to carve a massive hole in the state’s anti-discrimination laws? Remember the football coach who was fired for offering a “quiet prayer of thanks,” although he wasn’t actually fired and the “quiet prayer” was actually a widely publicized media event in which, as Justice Sonia Sotomayor pointed out in dissent, “Members of the public rushed the field to join [Coach] Kennedy, jumping fences to access the field and knocking over student band members.” If you’ve got an agenda case, establishing standing doesn’t take much.

Except for when it does.

These “Hippocratic medicine” doctors, who had brought a sweeping anti-abortion claim on the eve of a presidential election, were out of luck. Justice Brett Kavanaugh’s opinion pointedly did not say that politicized advocacy groups could never have standing to second-guess the FDA: “It’s not clear that no one else would have standing to challenge FDA’s relaxed regulation of mifepristone.” The word “relaxed” is a remarkable way to describe the FDA’s rigorous process of testing and approval. Knowing how cynically the Court majority manipulated the timing of Dobbs, a sane observer would wonder whether standing for some other group opposed to mifepristone may perhaps—Hey, presto!-–be found in a year or so when forcing a near-total ban on medication abortion would be politically safer.

The impression of cowardice is strengthened by the Court’s other high-profile brush with abortion, Moyle v. United States, in which the Court cited the flimsiest of excuses to avoid another anti-abortion blockbuster. The case concerned a conflict between a federal statute, the Emergency Medical Treatment and Labor Act (EMTALA), and Idaho’s sweeping ban on abortion for any reason except officially reported cases of rape or incest or to “prevent the death of the pregnant woman”—pointedly omitting any exception to protect a pregnant patient’s health. The federal statute requires any hospital receiving federal funds to “provide either . . . such further medical examination and such treatment as may be required to stabilize the medical condition” or to transfer the patient to another hospital that can provide it. “Stabilizing” some dangerous labors may require an immediate termination of the pregnancy to prevent damage to a patient’s health—even though the patient may not be in danger of imminent death.

A federal district court blocked the Idaho statute pending a trial. But before one could be held, the Supreme Court issued an “emergency” order permitting the state statute to take effect. In other words, (in keeping with the Court’s Kremlin-level secrecy, no vote lineup was reported) five Justices were inclined to uphold the Idaho statute–and believed that Idaho would suffer “irreparable injury” if the statute did not go into immediate effect.

Yet the atmosphere of haste was strangely altered by the time the Court heard oral argument. Soon after, a majority of the Court voted to “dismiss as improvidently granted” the state’s appeal—which, remember, had been an emergency only a few months earlier. The dismissal order was a whopping 33 words, but a separate opinion by Justice Amy Coney Barrett, joined by Roberts and Kavanaugh, explained that after giving the whole thing a good hard think, the majority had concluded that there really might not be so darn much of a conflict between Idaho and federal law, and so it would reinstate the lower-court injunction and wait (as it should have done from jump) for proceedings in the lower courts to clarify the question. These three expressed no view about the merits, while the extreme caucus—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—dissented, indicating they were ready to rule for Idaho. (Alito, in his opinion, actually put the word “health” of the pregnant patient in scare quotes, as if concern for women’s “health” were a newfangled fad being foisted by the woke federal government on the helpless legislators of Idaho.) Justice Elena Kagan, joined by Justices Ketanji Brown Jackson and Sotomayor, wrote that they were ready to rule for the federal government.

For those of you scoring at home, that’s Idaho 3, federal government 3—with the deciding votes to be cast by justices who, holding their cards close, nonetheless have solid “prenatal life” records. There’s every reason to believe that, when review is “providently” granted, at least two of these three brave jurists will join their more outspoken comrades to allow Idaho to deny care to desperately ill pregnant women unless they are at the point of death.

Like the decision about mifepristone, such a decision would be conveniently deferred until after the presidential election.

The prospect of the 2024 election brings us to a series of cases that embody the possibility that most frightens the majority—that powerful government officials might someday be held accountable for crimes in office. This fear has haunted the conservative Court for years, leading to a series of decisions weakening federal anti-bribery and anti-corruption laws. The decision in Fischer v. United States extended the Court’s solicitude to hundreds of those who have been found convicted of invading and trashing the Capitol in an attempt to prevent the certification of Biden’s defeat of Trump. The Court expressed deep worry that these prosecutions, under a federal statute that prohibited “corruptly obstructing, influencing, or impeding an official proceeding” (in this case, congressional certification of electoral votes), meant that “a peaceful protester could conceivably be charged . . . and face a 20-year sentence.” The Court did not exactly endorse Republican claims that the brutal assault was a “peaceful protest” or a “normal tourist visit,”—but it did say that the Government’s interpretation of the statute would “expos[e] activists and lobbyists alike to decades in prison.”

The Court’s accountability phobia blossomed into full-scale panic at the idea that the Court’s patron, the twice-impeached Donald Trump, might pay even the slightest penalty for the extensive catalog of “high crimes and misdemeanors” he committed while in office.

Colorado officials refused to list Trump on the state’s primary ballot. They cited § 3 of the Fourteenth Amendment, which provides that “[n]o person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States” if he or she has previously sworn an oath “to support the Constitution of the United States” and then “shall have engaged in insurrection or rebellion against the same.” These officials, not without reason, concluded that Trump, having sent an armed mob to the Capitol to break up Congress and prevent certification of his 2020 defeat, thus was ineligible to serve. They were relying, in part, on an exhaustive examination of the “original meaning” of the Fourteenth Amendment by two prominent luminaries of the Federalist Society, William Baude and Michael Stokes Paulsen.

Alarm bells went off at 1 First St. NE. A scant two days after Trump filed an appeal, the Court granted cert.; the oral argument was set for a mere month later. A few weeks after oral argument, the Court’s opinion made quite clear that state officials were not to interfere with Trump, no matter what the Amendment’s text said, unless a majority of Congress agreed. There was no trace of “textualism” or “originalism” in the opinion. The requirement of Congressional action appears nowhere in the text of § 3 nor the debates surrounding its adoption, and, as scholars pointed out, it also makes no sense. Under the text of 3, a disqualification could supposedly only be lifted by “a vote of two-thirds of each House”; under the Court’s reading, however, the two-thirds requirement is meaningless since even if Congress passed a disqualification statute, a simple majority could repeal it.)

The near-lightning speed with which the Court decided this case made a telling contrast with the lassitude it brought to another threat to Republican electoral hopes–the special counsel’s indictment of Trump for his role in the events of January 6. Trump had moved to dismiss the indictment, claiming to be immune from criminal prosecution for his actions as president. District Judge Tanya Chutkan had dismissed this argument as almost frivolous: “Defendant’s four-year service as commander in chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

Special Counsel Jack Smith had immediately asked the Supreme Court to do what it did with the Idaho statute—take the case away from the lower courts in order to decide the immunity issue as soon as possible. Haste was needed if the prosecution was to proceed before Election Day. That prospect, however, did not move the Court’s majority, which allowed the case to proceed to the Court of Appeals.

Recall that when Trump needed speed to gain Colorado’s primary ballot, the conservative majority moved the case urgently to the front of the calendar. No such urgency was detectable in the immunity case. The Special Counsel’s application for direct appeal was rejected on December 22, 11 days after it was filed. The case then went to the Court of Appeals, which ruled against Trump’s immunity claim on February 6. Trump petitioned the high court for review on February 12; after a leisurely 16 days of consideration, the Court granted the petition–and delayed oral argument until the last session of the Term. After the argument, the Court took two months to produce an opinion. By a bizarre happenstance, that timing guaranteed that Trump would not face trial before the presidential election.

The opinion by Chief Justice Roberts is, not to put too fine a point on it, outlandish, indeed shocking. Trump, an ex-president, is utterly immune for any crimes he may have committed in office, as long as the crimes were “official acts”—a category the Chief Justice ostentatiously refused to define—and is “presumptively” immune for acts on the outer edges of his or her presidential duties. Of course, the Chief Justice assured the world a president is not “above the law,” heavens no; there is some category of “unofficial acts,” slim as it may be, that might land a president in trouble (all I can think of would be domestic abuse–though an argument could be made that a presidential spouse is a governmental subordinate, making abuse “official”– or stealing, during a vacation, from a church collection plate). The burden to show that an act—blackmail, embezzlement, insurrection, even assassination—is not “official,” Roberts said, is entirely on the government. And even if a grand jury indicts an ex-president for a culpable “unofficial act,” Roberts explained, the prosecution could not even discuss any “official act” in seeking to explain to a jury why the “unofficial act” broke the law. Prosecutors seeking to hold Trump accountable for dispatching the mob to break up Congress will thus run with two feet in buckets.

The special counsel’s prosecution, which concerned a conspiracy to negate a presidential election and impose a dictatorship on the country, might have provided an occasion to explore the ill-defined border between official and non-official acts. Jack Smith provided the Court with a 45-page indictment, but the Chief Justice declined to offer guidance to lower courts. Instead, it remanded to the District Court to decide “in the first instance” whether an act could carry criminal responsibility—meaning, of course, that even if the Trump prosecution persists past November, it would face a handy year or so of appellate review before any trial could take place.

At first glance, the sweeping opinion in Donald Trump v. United States seems like an act of colossal judicial hubris, a sort of in-your-face defiance of those who have clung to the idea that laws apply to the man from Mar-a-Lago. We are Trump’s court, it seemed to say.

But on closer inspection, the Court’s affect seems less arrogant than fetal-position defensiveness. The court appears to have not been persuaded so much by Trump’s legal team as it was intimidated by the former president himself. The opinion reeks of fear—a fear that Trump, if returned to office, will involve the Court in his scheme to use the law against those whom he conceives to have wronged him. Here is the most striking part of this term-ending blockbuster:

Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine.

Trump has already said he will try to jail Biden—and that odious case would surely land on the Court’s doorstep. Trump has shown himself ready to call down fire and brimstone—and perhaps physical harm– on the Justices if they obstruct him.

In other words, the Court may find itself in the same position as any other mainstream figure or institution trying to compromise with Trump. Once enlisted in the Trump project, there is no turning back. If you dine with Trump, no spoon will ever be long enough.

The court has already been asked for rulings designed to guarantee Trump’s victory in November. In the event of a second Trump term–on the evidence of his conduct in office—his respect for the Court will probably equal his respect for the World War I American dead. As long ago as 2018, Trump publicly attacked a district judge who had ruled against him, then rebuked the Chief Justice for defending that judge. In his response to Roberts, Trump pointedly put the term “independent judiciary” in contemptuous scare quotes.

One doubts that he has made peace with the concept now. True, on September 24, he suggested to a rally audience that criticizing the Supreme Court should be made a criminal offense carrying prison time. The justices must surely detect the proprietary tone of the idea—Mess with my justices, and I will hurt you. That solicitude may be as damaging as any denunciation.

Of course, Trump always reserves the hostile Tweets as a penalty for disobedience. And at the end of Trump’s term, he and his Attorney General, William Barr, clearly flirted with defying the Court’s decision barring a citizenship question on the Census form (though the defiance would have been disguised as compliance). They abandoned the idea only when it became logistically unworkable. Trump was even more scathing after the Court dismissed Texas’s bizarre lawsuit demanding that the Justices set aside the popular vote and award Trump the Presidency. “The Supreme Court really let us down. No Wisdom, No Courage!” he tweeted. The diction echoes another tweet—“Mike Pence didn’t have the courage to do what should have been done”—that sent a mob into the Capitol chanting “Hang Mike Pence!” (The Justices may have been as struck as the rest of us by TV images of rioters dangling nooses within a few hundred yards of the Court building.)

Trump’s running mate, J.D. Vance, indicated as long ago as 2022 that Trump should put himself above the Court: “I think that what Trump should do if I was giving him one piece of advice: Fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people. And when the courts stop you, stand before the country, and say [quoting an apocryphal statement attributed to Andrew Johnson], the chief justice has made his ruling. Now let him enforce it.”

It seems clear that if, by some bizarre miscalculation, the Court finds itself an obstacle to a re-elected Trump, he will brush them aside as readily as he has other disloyal servants, plunging the Court into a crisis from which it might not recover.

Meanwhile, the Democrats have, at least since the crude coup de main that installed Amy Coney Barrett within days of Trump’s loss in 2020, begun speaking seriously about what is called “Supreme Court reform,” floating proposals that range from a Congressionally imposed enforceable code of ethics to changes in the Court’s jurisdiction to term limits for the Justices to simply adding new Justices until this majority’s hold is broken. After the Court’s immunity decision, even the institutionalist Biden (who would not allow his “Supreme Court Commission” even to consider changes to the Court’s makeup and procedures) became a convert to a binding code of ethics and a system of term limits.

Thus, whoever wins the election in November, the Court is in for a bumpy ride.

When the wise grow fearful, they act like fools. The Court seems willing to do what is necessary to win Trump the presidency—Bush v. Gore, the sequels—but also a desire that whatever nefarious revenge schemes might dominate a Trump second term not involve the Court.

The Court is begging for mercy: Whatever you are planning, Mr. Trump, leave us out. Please, just leave us alone.

Good luck with that.

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