The case for optimism about the Supreme Court

When you cover this Supreme Court for a living, it is tempting to fall into despair.

The Court has spent the last few years relitigating long-settled fights over abortion and affirmative action. It consistently rules that the rights of LGBTQ Americans, women using birth control, and even people who don’t want to catch a deadly disease must give way to the whims of the Christian Right.

Under its three-year-old Republican supermajority, the Court took a decidedly post-legal turn. It routinely relies on fabricated legal rules, such as the so-called major questions doctrine, to veto liberal policies like President Joe Biden’s student loan forgiveness program or to undermine environmental protections.

Its guns decision in New York State Rifle v. Bruen (2022) is an incompetent train wreck, which has baffled lower court judges and produced appalling results — including an appeals court decision holding that a law prohibiting individuals from “possessing a firearm while under a domestic violence restraining order” is unconstitutional.

And yet, despite all of this, I am far more optimistic about the future of the United States than I was a year ago, and a big reason why is the Supreme Court’s behavior over the last several months.

When the Court opened its latest term last October, my level of alarm was about a 13 out of 10. The GOP-appointed justices had just completed an orgy of conservative grudge settling, including its decision overruling Roe v. Wade. Worse, the Court planned to hear new cases that could legalize racial gerrymandering, gut Medicaid, and potentially even destroy US democracy altogether.

A little less than a year later, my level of alarm is down to a nine. The Court’s last term gave anyone to the left of Brett Kavanaugh no shortage of outrages, but it left Medicaid intact. It shut down an argument that many of Donald Trump’s nativist appointees to the lower courts used to seize control of federal immigration policy. And, on the crucial issue of voting rights, the Court handed down two decisions that give real hope that, no matter how else these justices might interfere with federal policymaking, they will preserve the people’s right to elect officials that the justices themselves do not want to see in office.

I want to be precise about the argument that I’m making. If you are angry at the Supreme Court, you are right to be angry. Many of this Court’s decisions are completely lawless — such as the Court’s recent decision in Biden v. Nebraska (2023), which ignored a federal law that unambiguously authorized Biden’s student loan forgiveness program. They demand anger. And that anger isn’t just righteous, it is useful.

But I also want to counsel against despair — that is, I want to counsel against the absence of hope.

The Court’s GOP-appointed majority is starting to draw some fences around the conservative legal project. The Court appears unwilling to attack entrenched parts of the American welfare state. It smacked down a Trump judge who attempted to ban the abortion drug mifepristone. It has rejected legal arguments that would devastate the US economy or threaten its national security.

And, most importantly, the Court is now signaling that it may preserve America’s ability to hold free and fair elections (or, at least, to hold elections that are as free and fair as possible in a nation with an Electoral College and a malapportioned Senate).

If it holds to that, there’s a very real chance that liberals and centrists can defeat this increasingly unpopular Court the old-fashioned way — by consistently electing presidents and senators who will fill the Court with justices who will relegate the works of Samuel Alito to the anti-canon.

The Supreme Court still appears to have some commitment to democracy

A year ago, the Supreme Court appeared to be waging a war on the Voting Rights Act, the landmark law that banned race discrimination in elections, and at least four justices seemed eager to give state lawmakers unprecedented new authority to rig elections.

Today, the picture is different. The Court surprised pretty much everyone who pays attention to voting rights litigation when, in Allen v. Milligan (2023), it struck down a racial gerrymander that benefits Republicans in the state of Alabama. Even more significantly, Milligan relied on a provision of the Voting Rights Act, known as the “results test,” which Chief Justice John Roberts has crusaded against for nearly his entire career.

This provision, which provides a state election law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” is invalid, even if the law was not enacted with racist intent, was signed into law by President Ronald Reagan in 1982. Reagan did so, moreover, over the objection of a conservative faction within his own Justice Department — and one of the most important players in this faction was a young John Roberts.

As voting rights journalist Ari Berman has written, “Roberts wrote upwards of 25 memos opposing an effects test.” He “drafted talking points, speeches and op-eds for” senior Justice Department officials opposing the amendment, and “prepared administration officials for their testimony before the Senate; attended weekly strategy sessions; and worked closely with like-minded senators on Capitol Hill.”

So, when Roberts wrote the Court’s 5-4 decision in Milligan, he didn’t simply hand down a surprising victory for voting rights after years of Supreme Court decisions that seemed intended to dismantle the Voting Rights Act. He also abandoned a 40-year-old grudge against laws that protect racial minorities from discrimination that might be unintentional — a grudge that he still held onto as recently as a 2015 oral argument.

If Roberts intended to send a message to liberals that he is willing to call a truce on voting rights, in other words, he picked an unusually powerful way to make that statement.

Similar things can be said about Moore v. Harper (2023), in which the Supreme Court rejected a legal argument, known as the “independent state legislature doctrine” (ISLD), that could have fundamentally destroyed the United States’ ability to hold competitive elections for the presidency and for control of Congress.

Under the strongest version of the ISLD, each state’s legislative body has virtually unlimited power to make laws governing federal elections. No state governor may veto such a law, and no state court may strike such a law down. Wisconsin’s gerrymandered legislature could pass a law giving all of that state’s electoral votes to Donald Trump, and there would be no recourse.

Meanwhile, weaker versions of this theory would strip state courts of their ability to strike down such laws or otherwise enforce provisions in their state constitutions that preserve voting rights and that protect against gerrymandering.

One might think that merely describing this argument would be enough to refute it. But, before Moore reached the Court, five sitting justices had all endorsed some version of the ISLD — although, in fairness, Chief Justice Roberts repudiated that support in 2020. And Barrett, the Court’s newest Republican appointee, had not expressed a view on the ISLD. So it appeared that the fate of American democracy would turn on whether Barrett was willing to break with her party.

Instead, the Court handed down a surprisingly fulsome rejection of the ISLD that reaffirmed previous decisions repudiating this theory, and which concluded that the US Constitution “does not insulate state legislatures from the ordinary exercise of state judicial review.” This decision was joined by Roberts, Kavanaugh, and Barrett.

Milligan and Moore are only two data points suggesting that this Court will respect democracy (a third is the Court’s decision not to overthrow the 2020 election and award a second term to Trump). But they are significant not just because they rejected attacks on voting rights, but because several key justices seemed to retreat from more hardline positions that they have staked out in the past.

It remains to be seen, in other words, whether the Court will hold to the line that it seemed to draw in Milligan and Moore. But both cases are hopeful signs that the justices will respect free elections.

The Court is leaving entrenched parts of the American welfare state intact

One of the most alarming Supreme Court decisions from before Republicans gained a supermajority on the Court was NFIB v. Sebelius (2012), where the Court allowed Republican states to opt out of the Affordable Care Act’s Medicaid expansion, and four GOP-appointed justices tried to repeal Obamacare in its entirety.

Since NFIB, however, there have been two other attempts to nuke Obamacare that made it to the Supreme Court — King v. Burwell (2015) and California v. Texas (2021). And, with each new lawsuit, fewer and fewer justices voted against the law, even though the Court moved sharply to the right between NFIB and Texas.

One important thing that changed between NFIB and King is that the Affordable Care Act became fully operational. Although Obamacare became law in 2010, most of its important provisions — including the Medicaid expansion and the provisions providing subsidized health insurance to middle-income earners — did not take effect until 2014.

That means that, when the Court nearly repealed the law in 2012, it was targeting a largely hypothetical new policy that few Americans actually benefited from. By the time King and Texas arrived on the Court’s docket, by contrast, the justices were being asked to take health coverage away from millions of Americans who already had it. Even some of the justices who dissented in NFIB weren’t willing to do that.

Something similar happened in Health and Hospital Corporation v. Talevski (2023), a June Supreme Court decision that could have eviscerated the entire Medicaid program. Instead, a 7-2 Court voted to leave Medicaid intact.

Medicaid is a “conditional grant” program, meaning that the federal government offers each state a significant chunk of money to fund health coverage for low-income patients, but the states must agree to a long list of rules governing how this money should be spent.

All 50 states voluntarily accept at least some Medicaid funds, so all 50 states must comply with the conditions attached to those funds. Those conditions range from broad requirements that state Medicaid programs must cover certain individuals, such as low-income pregnant patients and children, to granular rules governing how Medicaid-funded facilities must operate. In Talevski, for example, the plaintiffs accused a Medicaid-funded nursing home of violating a law forbidding it from using psychotropic drugs “for purposes of discipline or convenience and not required to treat the resident’s medical symptoms.”

Many of these conditions, moreover, are enforced almost entirely through private lawsuits. In 2015, however, three current members of the Court (Roberts, Justice Clarence Thomas, and Alito) signed onto an opinion by the late Justice Antonin Scalia, which argued that “the modern jurisprudence permitting intended beneficiaries [of federal programs] to sue does not generally apply” to conditional grant programs like Medicaid.

Had Scalia’s position prevailed in Talevski, it would have gutted the entire Medicaid program, leaving Medicaid beneficiaries almost entirely helpless if a state denied them legally mandated coverage.

Yet, when confronted with a case that could destroy a program that millions of Americans already depend upon for health care, even most of the Court’s Republican appointees blinked. Again, the decision in Talevski, which rejected Scalia’s argument and left the status quo in place, was 7-2 — with only Thomas and Alito in dissent.

Compare that decision with Nebraska, the case striking down Biden’s student loan forgiveness program. Although the Education Department announced that program in August of 2022, it never took effect because Biden-skeptical judges raced to enjoin it. And the Court’s GOP-appointed majority had no problem with halting a government program that did not yet have any beneficiaries.

Once welfare state programs take full effect, however, several key justices appear much more reluctant to disturb them.

The Court is unlikely to let judges ban abortion outright

In Dobbs v. Jackson Women’s Health Organization (2022), the decision overruling Roe, the five Republican appointees in the majority pledged to stay out of national abortion policy. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito wrote, promising that henceforth, the question of whether abortions would remain legal would rest with elected legislatures.

This was obviously a terrible blow to abortion rights. In Dobbs, the Supreme Court abandoned its historical posture of protecting those rights, and instead adopted a new position of neutrality to abortion. Henceforth, there would be no constitutional safeguards if lawmakers chose to ban the procedure. This has had disastrous consequences for pregnant people in states where lawmakers did just that.

But there is a third posture that the courts could take toward abortion: It could be banned nationally by judicial decree. Last April, Judge Matthew Kacsmaryk, a longtime Christian Right activist who Trump put on the federal bench, tried to take the courts down this third path. In a decision that took extraordinary liberties with the law, Kacsmaryk attempted to ban mifepristone, a medication used in about half of all abortions in the United States. Mifepristone has been legal in the US since 2000.

In any event, the Supreme Court stepped in fairly quickly, in Danco Laboratories v. Alliance for Hippocratic Medicine, to block Kacsmaryk’s decision before it could take effect. Only two justices — again, Thomas and Alito — publicly dissented from the Court’s decision to keep mifepristone legal.

This case will need to go up to the justices again. On Wednesday, a far-right panel of the United States Court of Appeals for the Fifth Circuit handed down its own decision attempting to significantly restrict mifepristone. But the Danco Laboratories decision is a hopeful sign that the justices will not allow rogue judges to ban abortion outright, or to ban medications and other items used in abortions.

The Supreme Court is not controlled by people who want to harm the United States

In 2008, as a collapsing US housing market threatened to throw the globe into a second Great Depression, Congress created an agency, the Federal Housing Finance Agency (FHFA), which oversaw hundreds of billions of dollars worth of transactions intended to stabilize the housing market and prevent the terrible 2008 recession from becoming something much worse.

In Collins v. Yellen (2021), several investors made a nauseatingly complex, but audacious legal argument. They asked the Court to cancel about $124 billion worth of these transactions. And they raised legal arguments that, if taken seriously, would have invalidated every single action taken by the FHFA in its 13 years of existence. It is far from clear how on earth a court is supposed to unravel hundreds of billions of dollars worth of transactions that have already taken place, and the turmoil caused by any attempt to do so could itself have triggered an economic depression.

But that didn’t happen. Collins rejected its plaintiffs’ call for a $124 billion bonfire. Only Justice Neil Gorsuch agreed with the plaintiffs and the lower court judges who’d sided with them, and flirted with an economic depression.

And there are other signs (including the Talevski decision) that the current Court, for all of its willingness to bend the law to implement Republican Party policies, is not willing to endanger important American institutions.

In Austin v. US Navy SEALs 1-26, for example, a small group of judges (in the Fifth Circuit, naturally) determined that religious conservatives serving in the US Navy could defy an order to take the Covid vaccine — and could even be deployed against the judgment of military commanders. The implications of these lower court decisions were breathtaking, as they implied that servicemembers who claimed certain religious beliefs did not need to follow orders.

As Justice Kavanaugh wrote in a brief opinion explaining why these judges erred, the lower court that countermanded the military’s orders to its own personnel “in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments.”

One of the major narratives that is likely to emerge from the Supreme Court’s upcoming term, which will begin in October, is that the justices appear poised to reverse several more Fifth Circuit decisions that threaten the stability of the United States and its government. Among other things, the Supreme Court will review a Fifth Circuit decision that declared an entire agency — the Consumer Financial Protection Bureau — unconstitutional. It will also review a Fifth Circuit decision gutting the federal government’s power to enforce securities law.

In both these and other cases arising out of the ultra-reactionary Fifth Circuit, the justices are likely to reverse. If nothing else, the Court’s upcoming term will test (and, most likely, confirm) the thesis that the Supreme Court is not dominated by nihilists who wish to sow chaos for its own sake.

So what does all of this mean?

Again, I want to be clear that no one should be Pollyannaish about this Court. I began this piece by saying that my level of alarm surrounding the Court has moved from a 13 out of 10 to a nine. A nine is still very bad.

The Supreme Court’s descent into partisanship, moreover, is just one symptom of a much larger cancer within American democracy. A former president, the same president who appointed a third of the Supreme Court, has now been indicted twice for attempting to overthrow an election. Many of that former president’s supporters violently attacked the US Capitol in a failed effort to extend his time in office.

But, despite all of these signs that US democracy faces greater challenges today than it has faced since 1965, when the passage of the Voting Rights Act transformed the United States from something more like an apartheid regime into a liberal democracy, the United States is still in the phase in its democratic decline when that decline can be reversed at the ballot box.

This is why Moore and Milligan are such hopeful signs. They suggest that the Court’s GOP-appointed majority is not attempting to consolidate power by shutting down the franchise. And they tell us that the best reaction to this Court is not despair over what it has done, but sustained outrage and political organizing — until the rest of the government overflows with officials who will do everything in their power to undermine this Court’s worst decisions.

Meanwhile, the Court’s decisions in cases like Talevski, Collins, Texas, and SEALs all suggest that this Supreme Court will not do so much damage to US institutions that this damage cannot be reversed by a better Supreme Court, or by a Congress that rejects this Court’s values. Roe may be dead, but a Congress with solid Democratic majorities can pass the Women’s Health Protection Act and give back what this Supreme Court has taken from American women.

There are also early signs that the Court’s partisan behavior is triggering a democratic backlash. The Court’s more unpopular than it has ever been since several pollsters started measuring approval of the justices. Pro-abortion ballot initiatives consistently prevail, even in red states. Republicans had a surprisingly weak election performance in 2022, something that can likely be attributed, at least in part, to the Court’s decision in Dobbs.

The strongest case for optimism about the Supreme Court, in other words, boils down to eight words: We can beat them at the ballot box.

And then we will replace them.