The Weekly Sift

The Supreme Court’s attempt to scuttle the Chevron Doctrine is part of a much larger program.

Over the last few weeks, Court-watchers have been trying to sound the alarm about the prospect of scuttling what had (until recently) been a fairly arcane bit of legal interpretation: the Chevron Doctrine. Lawyers understand how important it is (the Court has applied it in over 100 cases in the last 40 years), but it’s tough to get the general public to pay attention, much less to be up in arms about its possible demise. But there actually are good reasons to be up in arms.

A fairly standard thing to do at this point would be to tell you what the Chevron Doctrine is and where it comes from. I’ll eventually get around to doing that — click the link if you really can’t wait — but I’d rather have you keep reading for a few more paragraphs before you bookmark this page with the idea of getting back to it when you have more time.

Blood money. So instead I’ll back up a few levels and start with the underlying problem: In a complex modern economy, there are countless ways for corporations to make money by killing people. They can kill their customers by selling products that will crash them into trucks or suck them out of airliners or cause heart attacks or give customers cancer or salmonella or some other disease. They can kill their employees with unsafe workplaces. They can kill their neighbors by pumping poisons into the air or water. As AI catches on, products may start killing people and we won’t even know why.

Sometimes corporations very consciously make the money-for-lives tradeoff, as the tobacco companies did for decades, and as the gun manufacturers are still doing. But sometimes they just don’t know, at least at first. They have a product, they make money off of it, customers seem happy with it, so why look any deeper than that? Diacetyl makes microwave popcorn taste more buttery — what’s not to like?

As individuals, we’re more or less helpless to protect ourselves. No one has the time or the expertise to analyze every single thing they use or come into contact with. That’s why we rely on government regulation, agencies like the FDA, EPA, FSIS, and others, to protect our lives. (Other agencies, like the SEC and the FDIC, protect our money from the kinds of scams that were endemic prior to the New Deal.)

Government regulators get their power from two sources: Congress and the President. Congress creates the agencies, defines their missions, and funds them each year. Meanwhile, the President appoints the people who set the policies to accomplish those missions. Ultimately, Congress and the President get their power from the voters.

But here’s the problem: The marketplace moves much faster than our political system. New products, new drugs, new food additives, new pollutants, and so forth appear every week. Imagine the dystopia we’d be living in if Congress, which strains to pass basic legislation to keep the government’s doors open, had to pass a new law to regulate each one.

Well, you may not have to imagine much longer, because the Supreme Court’s conservative majority seems hellbent on taking us there.

Delegated power. The way the regulatory system currently works is that Congress passes a few foundational laws that give the agencies abstract goals, and then lets the agencies hire experts who figure out how to pursue those goals.

A typical example is the Clean Air Act. The CAA was first passed in 1963 and then overhauled in 1970. It established air quality standards (NAAQS) for a few well-known pollutants like carbon monoxide, sulfur dioxide, and lead, but then it defined a general category of “hazardous air pollutants” (HAPs) made up of other gases and particulates that “threaten human health and welfare”. It tasked the EPA with making and maintaining a list of HAPs and creating emission regulations for controlling them.

Hold that in your mind for a minute: In passing the CAA, Congress banned or controlled substances that the members of Congress had never even heard of. That’s how the regulatory system works.

That’s a lot of delegated power, particularly power over corporations that don’t like being controlled. And yes, their wealth does give the companies opportunities to influence the system — say by bribing or otherwise inducing congresspeople to give them various exemptions, or by letting regulators know they can have cushy jobs after they leave government if they behave themselves — but it’s never enough.

What corporations would really like to do is monkey-wrench the regulatory system in general. And the best way to do that is to interrupt the flow of delegated power from Congress to the agencies: Make Congress pass a new law every time there’s some new thing to regulate. In a Congress where even saving lives can be a partisan issue, and where a bunch of small-state senators can lock things up with a filibuster, even the most obvious new regulations can be stalled indefinitely or watered down to nothing.

So the basic strategy for restoring corporations’ ability to profit by killing people has two pieces

• Logjam Congress.
• Prevent Congress from delegating its regulatory power to anybody else.

A three-pronged attack. With the second part of that plan in mind, corporate money begat the Federalist Society, and the Federalist Society (with the assistance of presidents who lost the popular vote and Senate “majorities” that don’t represent a majority of voters) begat the six conservative justices on the Supreme Court. Since gaining control of the Court, those justices have been working hard to fulfill the mission their corporate masters assigned them.

The most direct idea for keeping Congress from empowering regulatory agencies is known as the Nondelegation Principle: basically, that Congress can’t, as a matter of constitutional principle, delegate power that is inherently legislative. Some version of this idea is necessary, because otherwise Congress could authorize the president to be a dictator and then go home. But since 1928 delegation has been considered OK if Congress provided an “intelligible principle” for the agency to follow (like protecting human health and welfare from air pollutants).

But in a dissent in the Gundy case in 2019, Justice Gorsuch proposed a much stricter limit: Agencies can only “fill in the details” of laws, and can’t do something sweeping like, say, compile a list of dangerous pollutants to regulate. Fortunately, he didn’t get the majority to go along with him on that. But he’s still working on it, and the composition of the Court has changed since then. Expect to hear more about nondelegation sometime soon.

A second idea for reining in regulatory agencies is the Major Questions Doctrine, which the Court has created out of whole cloth over the last 25 years. Major Questions is a response to something that happens fairly often: Circumstances change in such a way that a provision in a law that seemed relatively minor at the time it was passed ends up granting an agency significant power. Major Questions allows the Court to say, “No, no, no. The law may say that, but Congress didn’t really mean it. If they’d intended to delegate such a large power, they’d have said so explicitly.”

So, for example, the Obama administration EPA decided that (due to the previously unforeseen problems of climate change), the Clean Air Act gave it the power to regulate carbon dioxide emissions from power plants. The Court nixed that in West Virginia v EPA. Carbon emissions, it said, are so central to the workings of our economy that (regardless of the text of the CAA) Congress would never have delegated that power without an explicit statement.

Now, there are four major objections to the Major Questions Doctrine:

• The Constitution never mentions it.
• The Court has never clearly defined what a “major question” is, so it has given itself permission to interfere (or not) whenever it feels like it.
• The law says what it says, even if Congress didn’t foresee all the possible applications.
• If Congress really didn’t intend to delegate that much power, it could pass a law to take power back. (But of course, that puts the logjam-Congress shoe on the other foot.)

One recent use of Major Questions was to torpedo OSHA’s rules about large employers vaccinating their workers against Covid. Yes, OSHA’s mission is to protect workers from unsafe working conditions, and yes, working next to an unvaccinated person during an epidemic is unsafe, but … Congress couldn’t really have intended that, could it?

One thing you’ll notice about Major Questions: It allows the Court to substitute its own judgment for both the plain reading of the law and for an agency’s interpretation of that law. And that brings us (finally) to the Chevron Doctrine.

Chevron. Back in the Reagan administration, all the ideological arrows pointed in the other direction: Reagan’s appointees were conservative, while judges tended to be liberal. In particular, the EPA was run by Justice Gorsuch’s mom, Anne Gorsuch.

Anne’s EPA had drastically limited its interpretation of what a “source” of pollution meant under the CAA. Previously, just about any change that introduced new pollution was considered a new source, and required EPA approval. But the new interpretation said that, say, an entire factory or power plant was the source of pollution, and could be substantially reconstructed without triggering EPA supervision.

The Natural Resources Defense Council sued to try to block something Chevron was building, but the Court ruled in Chevron’s favor by creating the Chevron Doctrine: When some part of a law is ambiguous, a court should defer to the interpretation of a regulating agency rather than impose its own interpretation of what Congress really meant. An agency couldn’t make up a ridiculous interpretation, but as long as its reading was plausible, the courts should yield to it. (An eye-glazingly detailed history of the Chevron case is in this interview between David Roberts and Dvid Doniger.)

But remember: the ideological arrows were pointing in the opposite direction from today, so Chevron was a conservative principle that was championed by conservative justices like Anton Scalia. The arguments he made were the same ones liberals are making today: Agencies have technical expertise that courts can’t compete with, and (because they ultimately get their power from Congress and the President), they’re closer to the voters than judges are. So Chevron is not just prudent, it’s democratic.

This kind of humility is sometimes called judicial restraint. For many many years, it was the hallmark of conservative jurisprudence: Activist liberal judges should restrain themselves, because they’re not as smart as they think they are, and because it’s undemocratic to remove issues from the political process.

But now conservatives have control of the courts, so humility is out the window. Apparently, judicial restraint was never actually a conservative principle, it was just a rhetorical device to keep liberal judges in check. Activist conservative judges, on the other hand, should have free rein to do whatever they want.

So Chevron has to go. The Court is using two fairly obscure cases (involving fees paid by the fishing industry to the National Marine Fisheries Service) to tee up an attack on Chevron. No one knows exactly what the ruling will say yet, but the questions the justices were posing during oral arguments point at a complete revision of Chevron that could make the Supreme Court also the Supreme Regulator; whether any given agency was interpreting its authorizing legislation properly would be for the Court to determine.

The practical implications of sinking Chevron could be enormous: Literally thousands of cases have been decided on that basis in the last 40 years, and any of them could come up for a rehearing. Plus, literally every regulation on the books will become a legal battleground, with the Supreme Court’s six conservative justices being the ultimate deciders.

In short, a committee made up of six foxes is about to take over the regulation of every chicken coop in the country.

The Supreme Court’s term ended last week.
But there’s still a lot of legal news to discuss.

When the final flurry of Supreme Court decisions came out late last week, you might have expected the legal world to go quiet for a while. Instead, this week

• A Trump-appointed judge took a long list of conservative conspiracy theories seriously, and issued an injunction banning large chunks of the executive branch from talking to social media companies. So if somebody puts on a lab coat and makes a YouTube claiming that the whooping cough vaccine turns kids into werewolves, the CDC has to sit on its hands.
• WaPo’s Ruth Marcus called attention to a ruling Federal District Court Judge Carlton Reeves of Mississippi made the previous week — a devastating attack on Clarence Thomas’ pro-gun ruling last year in Bruen. In a legal judo move, Reeves applied Bruen as written, ruling in favor of a convicted felon who claims the 1938 federal law barring him from owning guns is unconstitutional. Along the way, Reeves made it clear that he knows how ridiculous his ruling is, but he has to follow the Supreme Court’s lead.
• An appeals court overturned an injunction blocking Tennessee’s ban on gender-affirming care for minors. The law went into effect immediately.

Let’s take the three in one-by-one.

Opening the disinformation floodgates. On July 4, a date clearly chosen for its symbolic significance rather than because his court was open, US District Judge Terry Doughty of Louisiana, issued a 155-page memorandum justifying his injunction ordering large chunks of the Biden administration — the White House, State Department, FBI, CDC, et al — to have no contact with social media companies concerning disinformation.

The ruling makes dull reading, because it is mostly a rehash of claims made by the plaintiffs (the states of Louisiana and Missouri and several individuals) about “censorship” by the Biden administration. The judge appears not to have fact-checked at all, and most of the “violations” take the following form:

• Somebody posted a provably false claim on social media, containing dangerous misinformation about Covid or vaccines in general, or perhaps falsely attacking election officials in ways likely to provoke violence against them.
• Somebody in the government noticed, flagged the post for the platform the claim was posted on, and pointed out that the post violated the company’s own policies.
• The company took the post down, and may have sanctioned the poster’s account in some way.

In the examples given, the posters are almost all conservatives, for two simple reasons: The plaintiffs chose them that way, and conservatives post a lot more dangerous disinformation than liberals do.

This collection of examples has been spun into a conspiracy theory about the Biden administration’s sinister plot to silence conservative voices on the internet. The judge swallows this theory hook, line, and sinker, and responds accordingly.

The upshot of the injunction (if higher courts let it stand) is that if some video claims that vaccines could turn your child trans, the CDC just has to watch it go viral. Similarly, if a Russian troll farm starts a rumor among Black voters that they can vote over the internet, or that their mail-in ballots are fake and won’t be counted, the Cybersecurity and Infrastructure Security Agency (CISA) can’t do anything to stop the spread.

Given that I can’t recommend reading the judge’s memo itself, the best summary I’ve found is by Mike Masnick at TechDirt. What I like best about his account is that he gives the Devil his due: A few of the issues the judge raises are actually issues and should get public attention.

In particular, there is an issue with government pressuring private companies to do things that would be illegal for the government to do on its own. One form such pressure can take is threatening the companies with changes in the regulations that govern those companies.

There were some examples in the lawsuit that did seem likely to cross the line, including having officials in the White House complaining about certain tweets and even saying “wondering if we can get moving on the process of having it removed ASAP.” That’s definitely inappropriate. Most of the worst emails seemed to come from one guy, Rob Flaherty, the former “Director of Digital Strategy,”

However, most of the examples in the ruling are “made up fantasyland stuff”. And none were remotely as bad Ron DeSantis punishing Disney for speaking out against his Don’t Say Gay law, or Donald Trump threatening Amazon in order to pressure the Bezos-owned Washington Post to give him more favorable coverage. (Those examples are mine, not Masnick’s.)

Doughty seems incredibly willing to include perfectly reasonable conversations about how to respond to actually problematic content as “censorship” and “coercion,” despite there being little evidence of either in many cases … In doing so, Doughty often fails to distinguish perfectly reasonable speech by government actors that is not about suppressing speech, but rather debunking or countering false information — which is traditional counterspeech.

Masnick highlights the example of Dr. Fauci countering misinformation in the anti-lockdown Great Barrington Declaration, which Doughty frames as government censorship. Similarly, the influence of the CDC on social media companies is not an example of government coercion.

I mean, the conversation about the CDC is just bizarre. Whatever you think of the CDC, the details show that social media companies chose to rely on the CDC to try to understand what was accurate and what was not regarding Covid and Covid vaccines. That’s because a ton of information was flying back and forth and lots of it was inaccurate. As social media companies were hoping for a way to understand what was legit and what was not, it’s reasonable to ask an entity like the CDC what it thought.

Finally, he comes to the injunction itself, which has the kind of contradictory vagueness that characterizes so many conservative efforts (like anti-critical-race-theory laws). The injunction includes reasonable-sounding exceptions allowing communication about “criminal activity” or “national security threats” or “threats that threaten the public safety or security of the United States” and a few other things. However, most of the examples the judge casts as violations actually fall into one of his exceptional areas.

It seems abundantly clear that nearly all of the conversations were about legitimate information sharing, but nearly all of it is interpreted by the plaintiffs and the judge to be nefarious censorship. As such, the risk for anyone engaged in activities on the “not prohibited” list is that this judge will interpret them to be on the prohibited list.

So like Florida teachers, Biden-administration officials have no way to know what is legal and what isn’t. And so the injunction will have a chilling effect well beyond its text’s actually meaning.

Protesting Bruen and originalism. Here’s Ruth Marcus’ summary of Judge Reeves’ ruling:

Lower-court judges are bound to follow the law as decreed by the Supreme Court. They aren’t bound to like it. And so, lost amid the end-of-term flurry at the high court, came another remarkable ruling by U.S. District Judge Carlton W. Reeves of Mississippi.

Reeves declared that the court’s interpretation of the Second Amendment compels the unfortunate conclusion that laws prohibiting felons from having guns violate the Second Amendment. He took a swipe at the conservative justices’ zealous protection of gun rights even as they diminish other constitutional guarantees. And, for good measure, he trashed originalism, now “the dominant mode of constitutional interpretation” of the Supreme Court’s conservative majority.

Reeves explained what forced his hand in making a ruling he clearly finds ridiculous:

Firearm restrictions are now presumptively unlawful unless the government can “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” New York State Rifle & Pistol Ass’n, Inc. v. Bruen

In the case before him, a convicted felon caught with firearms was arguing that a 1938 law permanently banning felons from owning firearms violates his Second Amendment rights.

Reeves accepts the accuracy of the government’s claim that 120 post-Bruen federal court decisions have applied the law without noting such a violation. But …

In none of those cases did the government submit an expert report from a historian justifying felon disarmament. In none of those cases did the court possess an amicus brief from a historian. And in none of those cases did the court itself appoint an independent expert to help sift through the historical record.

Of course, Reeves has not done so either, but that’s OK, because neither did the Supreme Court in its gun-rights cases. Both Scalia in Heller and Thomas in Bruen relied instead on “law office history” that was “selected to “fit the needs of people looking for ammunition in their causes”. He summarizes the problem:

The federal felon‐in‐possession ban was enacted in 1938, not 1791 or 1868—the years the Second and Fourteenth Amendments were ratified. The government’s brief in this case does not identify a “well‐established and representative historical analogue” from either era supporting the categorical disarmament of tens of millions of Americans who seek to keep firearms in their home for self‐defense.

So “the government failed to meet its burden” in claiming that the law is constitutional.

Reeves’ ruling is worth bookmarking, because in contains an excellent history of the shifting interpretations of the Second Amendment. (Some years ago, I explained this difference of opinion by claiming that the Amendment doesn’t have any real meaning any more, so judges forced to interpret it have to make something up.)

But what’s really striking is Reeves’ closing section, which raises a question more people should be asking: Why doesn’t the Supreme Court defend all constitutional rights as zealously as it defends Second-Amendment rights?

In breathing new life into the Second Amendment, though, the Court has unintentionally revealed how it has suffocated other fundamental Constitutional rights. Americans are waiting for Heller and Bruen’s reasoning to reach the rest of the Constitution.

He starts with one obvious example: The Sixth Amendment guarantees all defendants a “speedy trial”. According to the historical record, what did the Founders consider “speedy”? Certainly not five years, which the Court endorsed in Barker v Wingo.

And then there are voting rights, which the Court has found to be “fundamental”, but it has erected much higher barriers to claiming that the government has violated your voting rights than it has set for violations of gun rights.

Maybe the Supreme Court is correct that in this country, to “secure the Blessings of Liberty to ourselves and our Posterity,” the government should have the burden of justifying itself when it deprives people of their constitutional rights. Perhaps the Court is also correct that constitutional rights should be defined expansively. The Court just isn’t consistent about it.

We have one Constitution. All of it is law. It has been enforced today as best as this Judge can discern the Bruen Court’s holding and reasoning. And, one hopes, a future Supreme Court will not rest until it honors the rest of the Constitution as zealously as it now interprets the Second Amendment.

Gender-affirming care. Fourteen states have passed laws banning gender-affirming care for minors. While the science justifying such treatments is far from settled, the majority of current medical opinion goes the other way. Also, by putting its own judgment above that of both doctors and parents, these red states expose the hollowness of the “parents rights” rhetoric they embrace in other contexts.

District court judges in Arkansas, Alabama, Florida, Indiana, Kentucky, and Tennessee have issued injunctions blocking these laws from taking effect. But Saturday was the first time an appellate court weighed in: A panel of Sixth Circuit judges ruled 2-1 to overturn the Tennessee injunction and let the law take effect. The Sixth Circuit also includes Kentucky, but this ruling does not directly effect Kentucky.

The ruling remains preliminary, as the 6th Circuit court plans to issue a full ruling by Sept. 30 after hearing arguments for a full appeal of the ban. In a filing Saturday, the court indicated it would decide the pending Kentucky case alongside Tennessee’s and set an accelerated schedule for briefing on those cases. However the schedule runs into next month and the next regularly scheduled argument session for the 6th Circuit after those deadlines is not until October.

Unless the other appellate courts follow the Sixth Circuit’s example, the issue is likely headed to the Supreme Court.

On September 10, the New York Post ran the headline “Chief Justice John Roberts defends Supreme Court legitimacy“. His speech the previous evening at a conference of judges in Colorado inspired discussions on several news networks around the question: Is the current Supreme Court legitimate?

I was reminded of this passage from the 1948 political novel All the King’s Men.

It was one of those embarrassing questions like “Do you think my wife is virtuous?” or “Did you know I am a Jew?” which are embarrassing, not because of anything you might say for an answer, the truth or a lie, but because the fellow asked the question at all.

The problem isn’t so much how anyone might answer the question of the Court’s legitimacy, but that we have to answer it at all. It didn’t used to be up for debate; but now it is. The Court has done that to itself.

Polls show the Court’s approval rating at record lows. Court-packing — expanding the Court [1] so that new justices can be appointed — had been off the table politically since FDR tried it in the 1930s. But in a Marquette Law School poll taken earlier this month, 18% strongly favored increasing the number of justices, and 33% somewhat favored it, adding up to a slim majority. With some demographic groups, court-packing was fairly popular:

Expanding the court was favored by larger majorities of a number of groups: 63% of Black respondents, 61% of Hispanic respondents, 60+% of those ages 18-44, 60% of women and 56% of those making less than $30,000 per year.

These kinds of numbers matter, not because Congress is likely to take up a court-packing proposal, much less pass one, but because the whole idea constitutes a blasphemy against the mythology of the Court. The Supreme Court is supposed to be a kind of priesthood, whose lifetime appointments remove them from the hurly-burly of worldly concerns. In his confirmation hearing in 2005, Roberts waxed idealistic:

Mr. Chairman, I come before the committee with no agenda.

I have no platform.

Judges are not politicians who can promise to do certain things in exchange for votes.

I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

So what’s Roberts’ defense of the Court now?

Simply because people disagree with opinions, is not a basis for questioning the legitimacy of the court

But the problem isn’t just that the Court’s reversal of Roe — or its rulings on guns or voting rights or campaign finance or the separation of church and state — aren’t popular. The Court’s legitimacy problem runs much deeper.

The law changed not because anything changed in the world, but because new justices joined the Court.

It’s not unheard of for the Supreme Court to reverse a precedent that has stood for many years. Plessy v Ferguson, for example, established the separate-but-equal principle in 1896, and was reversed by Brown v Board of Education in 1954. But the contrast between the Brown and Dobbs reversals is striking.

The Brown reversal was unanimous, not a 5-4 decision where the three most recently appointed justices made the difference. The arguments in Brown represented a change in tactics from those in Plessy. And the world had changed around Plessy: The Brown decision cited recent psychological research on the effects of segregation on Black children; the federal government submitted a brief about how racial discrimination was hurting the United States in the Cold War competition in Africa and Asia; Black soldiers had fought for the US in two world wars; and the supposed inferiority of Black people had been challenged in sports by athletes like Jesse Owens, Joe Louis, and Jackie Robinson.

But what created the Dobbs decision was the appointment of new justices. Donald Trump had run on the promise that his judicial nominations would be “all picked by the Federalist Society“, which opposed abortion rights. He fulfilled that promise: He made three appointments, all of whom voted to overturn Roe.

Squaring that record with Roberts’ confirmation-hearing idealism requires a lot of unconvincing verbal gymnastics: True, Gorsuch, Kavanaugh, and Barrett didn’t get votes in the Senate by promising to overturn Roe. (Quite the opposite, they secured the final votes they needed by promising to respect precedent, which they did not do.) The political process was more roundabout: Trump promised to let the Federalist Society pick his judges, and Gorsuch, Kavanaugh, and Barrett sent the Federalist Society sufficient signals to convince them that they would overturn Roe.

So yes, they are politicians who got their positions by (indirectly) promising to do certain things. They were put on the Court to pitch and bat, not to call balls and strikes. That fact was widely known, and anti-abortion legislatures intentionally teed up laws that would allow the new justices to overturn Roe.

The Court’s conservative majority is due to political shenanigans in the Senate.

When Justice Scalia died, President Obama nominated Merrick Garland to replace him. Garland had a spotless record that left Republican senators no excuse to vote against him. So instead Majority Leader Mitch McConnell just refused to recognize that Garland had been nominated at all, ignoring the Constitutional directive to advise and consent on nominations, giving the excuse that the Garland nomination was too close to the 2016 election. That argument went out the window, though, when Ruth Bader Ginsburg died, and Barrett’s nomination was raced through the Senate so that she could be seated in time for any 2020 election controversies.

The exchange below is instructive: Al Franken says the Garland/Barrett hypocrisy “destroyed the legitimacy of the Court”. Republican Alice Stewart argues that the Garland maneuver is what happens “historically” when the Senate is controlled by a different party than the White House. And Franken refuses to let that lie pass: “When has it ever happened before?” he demands, and won’t stop asking the question, because Stewart can’t answer. It had never happened before.

The Court’s conservative majority is the result of minority rule.

The Founders strongly believed in the sovereignty of the People, but they left two major loopholes in the Constitution that have opened the door to minority rule: the Electoral College and the Senate. The Court’s current majority could not exist without both of them.

Trump’s three justices would never have been appointed if the Electoral College in 2016 had not reversed the decision of the voters: Hillary Clinton beat Trump nationally by nearly three million votes. [2] Worse, Mitch McConnell’s Senate majority did not represent a majority of the American people.

For the last thirty years, Republican Senate majorities have relied not on the support of a majority of American voters, but on using small-state victories to overcome large-state defeats. Since 1990, there has been only one six-year election cycle (i.e., the period during which all Senate seats come up for election) when Republican Senate candidates got more votes than their Democratic opponents. It hasn’t happened since the 1994/1996/1998 cycle. [3]

In other words, if the Senate represented the American people, Mitch McConnell would never have been majority leader.

Under a majority-rule constitution, a Democratic-majority Senate would have seated Merrick Garland, Hillary Clinton would have nominated Ruth Bader Ginsburg’s replacement to a Democratic-majority Senate, and Justice Kennedy would be hoping to live long enough to see a Republican president. Liberals would have a 5-4 majority, counting the sometimes-liberal Kennedy as part of the conservative 4.

The Court actively participates in a minority-rule vicious cycle.

It would be one thing if happenstance (such as who dies when) had created the conservative Court majority, and that Court went on to make impartial principled rulings about elections.

But conservative justices on the Court have been actively promoting the minority rule that installed them. Justice Roberts, for example, wrote the 5-4 opinion that gutted the Voting Rights Act, and has continued to chip away at what remains of it. [4]

That opinion has allowed Republicans to pass voter suppression laws in swing states like Georgia and Wisconsin, which might well decide which party controls the Senate next year. Roberts’ ruling could make the difference that puts Mitch McConnell back into a position where he could block a Biden nominee if some member of the Court’s conservative majority should happen to die or retire unexpectedly.

It’s a vicious cycle: A Court approved by minority rule extends minority rule.

The Roberts Court has put its thumb on the electoral scales in a variety of other ways, consistently favoring Republicans. It has refused to ban gerrymandering, arguing the absurd point that the voters should take action against the very gerrymandering that makes their votes irrelevant. It has opened the spigots of corporate campaign donations and dark money, which overwhelmingly flows to conservative candidates.

Again, we can see the results: Democrats currently lead in the generic congressional ballot polls by an average of 1.3%. And yet Republicans are favored to control the House. Why? Because Democrats have to win by 3-5% to gain a majority of seats.

Compare two recent “wave” elections. In 2018, 53.4% of voters supported Democratic House candidates, compared to 44.8% who supported Republicans. Those votes gave Democrats a 235-199 majority.

In 2010, 51.7% voted for Republican House candidates compared to 44.9% for Democrats. The resulting Republican majority? 242-193.

Fewer Republican votes yield more Republican seats. That’s a problem for people who believe in democracy, but not for the Roberts Court. The more Republican seats, the better.

It could soon get worse. The Court has decided to hear Moore v Harper, a case which raises the once-absurd “independent state legislature” doctrine. Under this theory, rules for federal elections are set by state legislatures, and no one can overrule them: governors can’t veto and state supreme courts can’t find that they violated the state constitution.

When you consider that some state legislatures are so gerrymandered that they aren’t really democratic institutions any more [5], giving them total control of federal elections is a recipe for permanent minority rule.

The Court has an ethics problem.

The only ethics code that applies to the justices is the vague “good behavior” standard in the Constitution. Each justice makes his own decisions about conflicts of interest and whether to recuse from a case. The current justices are abusing that lack of standards.

The most egregious recent case is Clarence Thomas, who rules on cases where his wife has an interest.

But also, a federal panel in 2018 dismissed 83 ethics complaints against Brett Kavanaugh, not because they weren’t serious, but because “there is no existing authority that allows lower court judges to investigate or discipline Supreme Court justices.” And we have since discovered that the FBI investigation into Christine Blasey Ford’s sexual assault accusation against Kavanaugh was rigged to find nothing.

Unpopularity is just the beginning.

Any judge has to be ready to bear the heat of making an unpopular decision, if that’s what the rule of law requires. But when changes on the Court immediately lead to changes in the meaning of the laws, the public is right to be suspicious.

And when those changes on the law are based on a minority’s ability to change the Court without ever changing the minds of the electorate, that’s a problem. Vox’ Ian Millhiser sums that problem up:

The Dobbs decision is the culmination of a decades-long effort by Republicans to capture the Supreme Court and use it, not just to undercut abortion rights but also to implement an unpopular agenda they cannot implement through the democratic process.

Worse, the Court is abusing its power to change the democratic process itself, and so is rewarding the party that installed it.

That — and not a few unpopular decisions — is the source of the Court’s legitimacy problem.

[1] Many people think the number of justices is set in the Constitution, but it isn’t. Article III says simply:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

leaving the details of the Court totally up to Congress. The actual number of justices has changed many times. The original court had six justices. The nine-justice court was established in 1869, and has stayed at nine ever since.

The objection to court-packing is obvious: It sets up the possibility of a tit-for-tat cycle, where new justices are approved whenever a new party takes power. But accepting that argument leaves a question unanswered: The Court has already been packed. What should be done about that?

[2] Some people add Justice Alito to this total, because he was appointed by George W. Bush, who lost the popular vote to Al Gore in 2000. However, Bush nominated Alito during his second term, after winning the popular vote in 2004. You can argue that if Gore had been elected in 2000, Bush couldn’t have been re-elected in 2004. But that argument takes us a little too far down the alternate-history rabbit hole. Gore might have lost his re-election bid in 2004, and the Republican who beat him might have appointed someone like Alito.

[3] The Senate that confirmed Amy Coney Barrett in 2020 is a good example. During the 2014/2016/2018 election cycle (when the senators serving in 2020 were elected), Democratic Senate candidates got 50.3% of the votes compared to the Republicans’ 43.3%. But that minority of votes netted the Republicans a 53-47 majority.

[4] It’s impossible to read Roberts’ 2013 Voting Rights Act decision as a legal argument; it’s a political argument, pure and simple. Here’s my summary at the time:

The VRA was vaguely justified in 1965 and is vaguely unjustified now, because “things have changed”. If I were a congressman, I would have no idea how to revise the VRA so that it passes constitutional muster. If Congress does revise it, lower court judges who rule on it will just be guessing about its constitutionality. It will have to go back to the Supreme Court before anyone knows whether it’s really a law again, because there are no standards in Roberts’ opinion by which a revision can be judged.

[5] According to a report by the Schwartzenegger Institute:

59 million Americans live under minority rule in their U.S. state legislatures following the 2018 elections. Minority rule is defined as the party with the minority of votes in the most recent election nevertheless controlling the majority of seats in the state legislature subsequent to that election. Six U.S. state legislatures were drawn by legislatures or partisan-leaning committees that resulted in minority rule following the 2018 elections. These states are Michigan, North Carolina, Ohio, Pennsylvania, Virginia, and Wisconsin

Note that all six of those states were Republican legislatures ruling over a Democratic electorate.