The most consequential Supreme Court term in decades has come to a close, with the completion of a trifecta of transformational decisions, each the fulfillment of a longtime conservative policy dream.
And the conservative justices aren’t even done. At the end of this triumphant run, they announced that next term they’ll be hearing a case that could give state-level Republicans sweeping power to control elections.
At a time like this, intellectual engagement with this court’s rulings, as committed as many liberals are to that project, begins to feel beside the point. We could delve into the flaws in the court’s reasoning, or the myriad ways the conservative justices’ alleged devotion to “originalism” and “textualism” has been revealed to be a sham — and many will, including dissenting liberal justices.
But what the court’s conservative majority and the Republicans who cheer their decisions know is that only one thing matters: power.
Conservatives have spent decades amassing it, now they have it, and they’re going to use it in every possible way to create the country they want.
The court has already tossed aside reproductive rights by overturning Roe v. Wade and nullified gun regulations in liberal states — while helping itself to a side dish of further eviscerating the establishment clause.
Now the court has declared, in West Virginia v. Environmental Protection Agency, that when Congress passed and later amended the Clean Air Act, it didn’t intend to give the EPA the ability to create regulations pushing power plants to transition to cleaner fuels. Instead, the court ruled, the EPA “claimed to discover an unheralded power representing a transformative expansion of its regulatory authority,” which it may not do.
In her dissent, Justice Elena Kagan dismantled the majority’s analysis of the Clean Air Act, demonstrating that the kind of greenhouse gas regulation at issue is exactly what Congress intended when it passed that law, as a plain reading of the text makes clear.
“Some years ago, I remarked that ‘[w]e’re all textualists now,’” Kagan noted. “It seems I was wrong. The current Court is textualist only when being so suits it.”
She concluded:
Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent.
The reason the court’s conservatives appointed themselves the decision-makers on climate policy is simple: They don’t like what the EPA did. No real constitutional or statutory violation was at issue. They simply believe, as part of their conservative ideology, that the government shouldn’t combat climate change, so they’re going to stop the government from doing it.
That’s not what they would say, of course. They would claim their convoluted reading of the Clean Air Act discovers the true meaning of the statute. But by sheer coincidence, they often manage to find the limits of laws and the Constitution precisely where their policy preferences begin.
As a bonus, they used their decision to elevate the “major questions doctrine” — which holds that agencies can’t regulate in ways that aren’t explicitly laid out in statutes if what they’re doing is too consequential — into precedent. Yet in practice, everyone knows that the major questions doctrine, being vague and versatile, will be used only to strike down agency regulations the conservatives don’t like; regulations from Republican administrations they find pleasing will be left intact.
Lest anyone think, on the final day of its term, that the court wasn’t champing at the bit to give Republicans even more power, it announced it will be hearing the case of Moore v. Harper. That’s a challenge to the North Carolina Supreme Court’s striking down of an absurdly gerrymandered congressional map on the grounds that it violated the state constitution.
Conservatives are eager to use this case to enshrine the “independent state legislature theory,” which would effectively say that legislatures alone can set rules for how federal elections are carried out, making state constitutions, governors’ vetoes and the decisions of state courts essentially irrelevant.
Why are conservatives attracted to this idea? Is it their textualism, their strict constructionism, their originalism? Please. The reason is simple: At this moment in history, there are multiple states where Republicans have successfully gerrymandered themselves into control of a state legislature despite the fact that the electorate of that state is closely divided.
In these states — including Wisconsin, North Carolina, Pennsylvania and Georgia — statewide elections for offices such as governor or senator are sometimes won by Democrats and sometimes by Republicans, but the legislature remains firmly in Republican hands no matter what. So if the legislature alone has the power to write election rules, they can make sure Republicans will win, or at least make it more likely.
Were the situation reversed, and there were multiple swing states where Democrats controlled the legislature but the governors were Republicans, you can bet your bottom dollar that conservatives would call the independent state legislature doctrine a vile abomination that must be forever banished from consideration by the courts.
For this Supreme Court majority and the Republicans who created it, this is all about getting their policy goals enacted by whatever means available. It’s about exercising power toward that goal — and toward the goal of amassing and keeping more power. Don’t kid yourself that it’s about anything else.