After the Supreme Court overturned Roe v. Wade in 2022 with its landmark decision in Dobbs v. Jackson Women’s Health Organization, I hoped that Democrats would finally get a clue: The Supreme Court is not our friend. It has been corrupted and weaponized and functions as an antidemocratic enforcement mechanism of the Republican political agenda. When it’s not prosecuting the culture war on behalf of white-wing bigots, it’s destroying organized labor, engaging in copaganda, and anointing kings. The revocation of abortion rights was an opportunity for elected Democrats to wean themselves off the anachronistic view that the court is an “apolitical” engine of justice that must be deferred to and respected.
The opportunity was squandered. The Biden administration not only followed the letter and spirit of the Supreme Court’s various rulings, hobbling its own agenda; the president failed to use his bully pulpit to its fullest to turn public opinion against the court. The high court stymied one of Biden’s most popular initiatives, student-loan debt relief, and the administration did nothing. ProPublica handed the Democrats the largest Supreme Court corruption scandal in US history—the revelation that billionaire Harlan Crow had provided lavish, undisclosed vacations and other gifts to Justice Clarence Thomas—and the Democrats did next to nothing beyond writing a few angry letters and voting to issue some congressional subpoenas that were promptly ignored. Democrats refused to organize around court expansion or any other reform that could have reduced the power of this antidemocratic institution. They continued to prop up the court at the very moment there was an opportunity to cut it down to size.
Anytime I complained about this in print, on television, or at any bar in DC that would still offer me service, I was informed by establishment Democrats, left-of-center lawyers, and even some progressives that protecting the independence and strength of the Supreme Court was necessary. They argued that the public would not accept a Democratic Party that openly defied the courts. They said that a strong Supreme Court was a necessary check against a potential Trump administration.
I told those people they were fools—and events have since proved me right. The Supreme Court has shown time and again that it will provide no resistance to Donald Trump. Quite the opposite, as the court has become an enforcement arm of Trump’s illegal, unconstitutional agenda. Meanwhile, Trump flouts and defies court orders he doesn’t like without paying any appreciable price in the court of public opinion. The Supreme Court has revealed itself to be a useful tool for legitimizing Trump’s policies, and an ineffectual restraint against anything Trump wants to do.
Recall, if you can bear it, the court’s last term. The justices refused to stop Trump’s various assaults on democratic self-government, prevented poor women from receiving healthcare at Planned Parenthood, tried to eradicate transgender children, and perverted the 14th Amendment into a tool of white supremacy. Those were not the rulings of people who are “just trying to call balls and strikes” or are committed to stopping the rise of fascism. Even in the rare instances when Republican justices might disagree with Trump’s policy agenda, they know it is the smart play to give Trump what he wants now, and wait for him to move on or die.
Current Issue
All of which brings us to the first Monday in October, when the Supreme Court returns to work after an extended summer break. Nobody should be under any illusion that this court will stop or restrain Trump in any meaningful way this term. Nobody should imagine that it is interested in doing anything approaching the impartial application of “the law.”
This term, the court will continue to prop up the Trump regime. The six conservative justices will use the shadow docket—the name for the cases the court hears on “emergency” appeal, without regular argument or hearings—to fast-track Trump’s executive orders without even bothering to explain their reasoning. They’ll remove lower court injunctions to clear the path for Trump’s policies. They’ll use every procedural trick in the book, and when that’s not good enough, they’ll either rule for Trump outright or create opportunities for him to get second and third and fourth bites of the same apple until his unhinged administration tweaks its arguments to the court’s satisfaction.
When the court isn’t playing handmaiden to Trump’s particular brand of authoritarianism, it will do what it’s generally been trying to do for the past 20-plus years under John Roberts’s leadership: continue to suck the life out of the democratic process and crush the rights of anybody who doesn’t happen to be a cishetero white man. While Democrats patiently wait for the magical day when the Supreme Court tells Trump no, the six Republicans will bully trans kids and poison the environment for all kids lucky enough to survive the next school shooting.
None of this is speculation. Democrats, liberals, and those who value human decency will lose the highest-profile cases set to be argued in front of the Supreme Court this year. But while I can and will explain how this will happen, I can’t explain why so many of us are resigned to taking it. In March, Senate minority leader Chuck Schumer told NBC’s Meet the Press: “I believe that if Donald Trump should defy the courts, the public will rise up.” The public has not risen up, and they likely never will as long as leaders keep telling them all is well and the rule of law is functioning as intended. Leaders must rise up and lead; they must explain to the people who their true enemy is.
The Supreme Court is not our friend. And I don’t know how often this court has to kick us in the face to get people to realize that. But the answer, for at least another term, appears to be “more.”
Little v. Hecox and West Virginia v. B.P.J.
Argument date: TBA
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The Supreme Court is poised to violate the civil rights of an entire group of people, and this time the Democrats are unlikely even to object. The court is taking direct aim at transgender athletes’ participation in sports, but the Democratic consulting class has decided that discrimination against trans people is so popular that Democrats should sacrifice them to the slings and arrows of outrageous cishetero culture.
The first of these cases is called Little v. Hecox. In 2020, Idaho became the first state in the nation to ban transgender athletes from participating in women’s sports at any level. The law, called the Fairness in Women’s Sports Act, also allows any participant in sports to “question” a rival’s gender, triggering an invasive gynecological exam to establish “sex at birth.” There is no corresponding ban on people who wish to participate in men’s sports.
Lindsay Hecox was a student at Boise State University in Idaho who was barred from trying out for the school’s track and field team because she is transgender. Another, unnamed student believed that her body type would cause opponents to question her gender and force her to submit to medical examinations. Both athletes sued the state, alleging a violation of their equal-protection rights. They won in front of the Ninth Circuit Court of Appeals, but Idaho appealed to the Supreme Court.
Since then, Hecox has moved to withdraw from the case. She says she no longer wants to participate in sports because of the “negative public scrutiny from certain quarters” as well as illness and her father’s death; she also wants to focus on her academics. The request could lead to the Supreme Court declaring the case moot and refusing to rule on it, but the right-wing legal group Alliance Defending Freedom wants the court to keep going. That makes sense, from the conservative perspective. With six conservative justices steeped in anti-trans bigotry, conservatives have a good chance of winning this case—and defeating trans women athletes before they get another turn at bat.
I recognize that it is hard for some people to wrap their minds around the fact of transgender athletes because it requires them to, you know, understand things. You have to understand that there is a difference between gender and sex. You have to understand that being trans is not some kind of societal “contagion” you can catch from watching other people live their best lives. You have to understand that nearly 2 percent of the population is born intersex and simply doesn’t fit biologically into the false gender binary that you remember from watching Friends. You have to learn, and grow, and the entire Republican media machine is designed to tell people they never have to learn anything they can’t noodle out from the vantage point of their own porch.
What I can’t understand is when educated people see blatant, unconstitutional discrimination staring them in the face yet decide to not care because that discrimination isn’t targeting them at that exact moment. You don’t need to be an expert in constitutional law to recognize that a law that treats participants in women’s sports differently than participants in men’s sports violates any fundamental protection of equality. And you shouldn’t need me or anybody else to tell you that a law that requires women, but not men, to drop their pants on someone else’s say-so to determine their sex is wrong and disgusting.
The second case the court will decide along these same unconstitutional and vile grounds is called West Virginia v. B.P.J. This case involves a 15-year-old trans girl known as Becky, who was banned from participating in girls’ track and field when West Virginia passed a law similar to Idaho’s. Becky started taking hormone blockers at age 10 to interrupt the onset of puberty. Taking hormone blockers is one of the things the NCAA and the International Olympic Committee require trans athletes to do in order to compete; in Becky’s case, she just wanted to play sports with her friends. The Fourth Circuit Court of Appeals sided with her, ruling that West Virginia’s ban violated the equal-protection clause of the US Constitution as well as Title IX. But West Virginia appealed to the Supreme Court.
These bans do nothing to help women and girls who play sports, and they clearly violate the Constitution. Nevertheless, I expect that these cases will be decided in favor of the anti-trans bigots, 6–3, with alleged attempted rapist Brett Kavanaugh writing for the majority. I imagine some kind of opinion in which he talks about how much he likes coaching girls’ basketball and how that gives him the moral clarity to mandate that women athletes take off their underwear and submit to gynecological exams. You know, for their own “protection.”
Louisiana v. Callais
Argument: October 15
The Republicans on the Supreme Court do not think the Voting Rights Act should be constitutional. The Voting Rights Act is the most important piece of legislation in American history. It is the law that enforces the 15th and 19th Amendments and thus secures the belated promise of political participation for all. It is the thing that makes this country a democracy instead of a white, male, apartheid state.
But Chief Justice John Roberts hates it. He has spent much of his career trying to destroy it. Since he was elevated to the Supreme Court, Roberts has taken shot after shot at the Voting Rights Act, most famously in 2013 when, in Shelby County v. Holder, he and four of his conservative colleagues ruled that an entire section of the act was both unconstitutional and unnecessary because they decided that white people no longer need to be stopped from acting on their worst racist instincts. I view Shelby County as directly responsible for Trump’s election in 2016.
Since then, the attacks on the voting rights of non-white people have been nigh unceasing. Red-state governments have closed polling places in Black communities, added myriad voter-ID requirements, and attempted to gerrymander Black people, Latinos, and the Democratic Party out of political significance. The Supreme Court has gone along with every devious plan to take away the political power of non-white people, except one. In 2023, in a case called Allen v. Milligan, the court forced Alabama to draw a second majority-minority congressional district. Alabama has seven congressional districts and is 27 percent Black. The state had tried to make one majority-minority district while letting whites dominate the other six. The courts forced Alabama to make a second one (which resulted in 28 percent of Alabama’s congressional districts being majority-minority), and the Supreme Court ruled, 5–4, that this was required under the Voting Rights Act and allowed under the Constitution.
At the time, people like me wondered if the case marked a new commitment to racial equality in voting from the Supreme Court. This term, Louisiana v. Callais will answer that question with a resounding “no.” Instead of ruling as the Voting Rights Act requires, the court is likely to make yet another application of the act unconstitutional.
Louisiana v. Callais is basically indistinguishable from Allen v. Milligan. Louisiana has six congressional districts and is around 30 percent Black and Hispanic. White legislators tried to pack as many Black and brown people as possible into a single congressional district, allowing whites to dominate the other five. Courts forced Louisiana to draw a second majority-minority district. Under a straight application of the just-decided Milligan precedent, this case should be over. But it’s not, because the Supreme Court does not want non-white people to have fair representation in government.
This case was actually argued last term, but the court did not reach a decision. The Republicans seemed unwilling to affirm the precedent they had set down just a year earlier with Milligan. Instead, the court asked for the case to be reargued this term, with lawyers presenting briefs on a new set of questions—specifically, whether the Voting Rights Act’s prohibitions against racist gerrymandering are unconstitutional.
To explain that without jargon: The court is asking whether the failure to overrepresent white voters is a violation of white people’s constitutional rights against discrimination. They’re asking whether the 14th and 15th Amendments prevent the state from drawing a racially fair congressional map.
That they’re even asking this question gives away the answer they intend to deliver. Again, this case could have been decided in one sentence: “Read Allen v. Milligan and stop wasting our time.” The fact that they want to reargue the case, and reargue it on this wild ground of white grievance, means that the two people who sided with the liberals in Milligan, Roberts and alleged attempted rapist Brett Kavanaugh, are eager to resume their campaign against the Voting Rights Act.
American democracy cannot survive the Supreme Court’s attacks on the Voting Rights Act, because American democracy did not really exist before the Voting Rights Act. White rule existed. And that is what this court wants to return us to with this case.
Chiles v. Salazar
Argument: October 7
Conversion therapy, the pseudo-scientific process of trying to change a person’s sexual orientation through psychotherapy and religious programming, is a form of child abuse. As of this writing, 23 states and the District of Columbia have banned the practice—for minors.
Predictably, right-wing Christofascists are outraged. They believe they can bully children into being cishetero normies, and they demand the right to try. This term, the Supreme Court will give them their wish and allow the antigay culture warriors to pursue this front in their ongoing war against LGBTQ children.
The case is called Chiles v. Salazar. It involves a Christian “counselor,” Kaley Chiles, who is challenging Colorado’s ban on conversion therapy. She claims she has a First Amendment right to tell kids that their sexual orientation is wrong and can be changed. She also claims she has a First Amendment right to practice conversion therapy under the free-exercise clause, which allows her to practice her religion in whatever way she deems fit.
Despite her gross and bigoted desires, Chiles’s claims have the contours of a legitimate legal argument. Licensed medical professionals should be given a wide berth to talk about whatever they want to talk about with their patients. And we broadly accept the notion that religious adherents should be allowed to program their kids according to their beliefs.
But parents, religious or otherwise, don’t have a First Amendment right to beat their kids as much as they deem necessary. Therapists don’t have a religious right to administer medically dubious shock treatments, or shove bamboo sticks under kids’ fingernails until they promise to not be gay. If you understand conversion therapy as a similar form of abuse, you understand that people shouldn’t have a constitutional right to do it.
Of course, the alleged Christians on the Supreme Court do not understand conversion therapy as child abuse. They think of it as just another tool in their arsenal to eradicate LGBTQ children. They will likely declare, 6–3, that Colorado cannot legally ban this practice, because it violates the First Amendment rights of child abusers who are just trying to “help” little Jimmy see the error of his ways.
Conversion therapy shouldn’t be allowed under the First Amendment. It should be banned under the Eighth Amendment’s prohibition against cruel and unusual punishment.
National Republican Senatorial Committee v. FEC
Argument date: TBA
In 2022, a pre-eyeliner JD Vance, along with Congressman Steve Chabot, the National Republican Senatorial Committee, and others filed suit against the Federal Election Commission over its rules limiting the amount of money that political parties can spend in coordination with federal candidates. They brought the lawsuit several months after a good-government group filed a complaint with the FEC alleging that Vance’s Senate campaign had illegally coordinated with his billionaire backer, Peter Thiel. As the FEC did its thing (and ultimately dismissed the complaint), the case wound its way through the courts. Procedural nonsense ensued, with appellate courts in Ohio talking about appellate courts in Colorado in the kinds of ways that would put a 10-year-old on a sugar high to sleep. Eventually, the NRSC, Vance, and others went to the Supreme Court, asking it to change the campaign finance rules—because nothing says “hillbilly” quite like stuffing somebody else’s money in your pockets and then begging to keep it.
The rules they all disliked were designed to limit, in some small way, the potential for corruption in politics; the idea was to prevent big-money donors from circumventing the individual campaign contribution spending limits by simply giving all their money to PACs that are wholly controlled by their desired political candidates.
The Supreme Court has upheld these FEC rules in the past, but that was in 2001—before Roberts took over, before Citizens United, and before the Supreme Court essentially endorsed the bribery of public officials last year.
Vance and the National Republican Senatorial Committee are now asking the Supreme Court to do away with the FEC’s few remaining rules and allow political candidates unfettered access to dark money. There’s no earthly reason to think that the six Republicans on the court will say no. Several of the court’s justices have themselves been exposed as brazenly corrupt—eager and greedy to accept whatever gifts and vacations come their way from the same group of big-money donors who would like to further infect our politics. The Republican plaintiffs are asking the fox to open the door to the henhouse so all the other foxes can come inside.
When Peter Thiel is sitting in the Oval Office in a few years, with President JD Vance on his lap, some people will ask, “How did this happen?” This case will be one of the reasons why.
Urias-Orellana v. Bondi
Argument date: TBA
It wouldn’t be a proper Supreme Court term if there weren’t a case that allowed the Republicans on the court to do something shocking and cruel to immigrants. This year, that case involves the harrowing life of Douglas Humberto Urias-Orellana.
Urias-Orellana is a Salvadoran national who fled to the United States with his wife and child after a hit man, known in court documents as Wilfredo, vowed to kill his entire family. Wilfredo shot and seriously injured both of Urias-Orellana’s half-brothers. Urias-Orellana himself was repeatedly harassed by armed masked men who demanded money and, on several occasions, assaulted him. Urias-Orellana moved repeatedly, but anytime he went near his hometown, Wilfredo’s men would find him. In 2021, after spying Wilfredo’s masked attackers patrolling the latest town where he was living, apparently looking for him, Urias-Orellana and his family fled to the United States without a visa.
I am a little bit afraid even to write about Wilfredo, and I’ve only read the summary of facts of the case. According to court documents, the dispute started because Wilfredo’s mother and the father of UriasOrellana’s half-brothers were (quoting the First Circuit here) “involved in a relationship of which Wilfredo did not approve.” I mean, at least Jean Valjean actually stole something. Urias-Orellana is getting hunted because his mother’s ex-lover had an affair with somebody else.
In any event, Urias-Orellana applied for asylum in the United States, as well as protection under the Convention Against Torture, saying that he feared persecution and death if he was sent home. That strikes me as an eminently reasonable application.
An immigration judge disagreed. The judge found that Urias-Orellana could “avoid” persecution in El Salvador as long as he never went back to his hometown and Wilfredo never found him. Urias-Orellana appealed, but the First Circuit rejected his appeal, saying these types of decisions were not reviewable by the courts. Urias-Orellana appealed to the Supreme Court, which agreed to hear his case.
That may sound like good news for Urias-Orellana, because the anti-immigrant Supreme Court wouldn’t necessarily take a case in which the plaintiff lost at all lower levels of review if it didn’t disagree with those rulings. But the court is not reviewing the merits of Urias-Orellana’s asylum application; it’s reviewing how much “deference” appellate courts should give to immigration judges who deny asylum applications. Urias-Orellana argues that courts should be able to review those decisions, just as they can review anything else. Anti-immigration forces believe the decision of an immigration judge should be final. Trump’s solicitor general, John Sauer, urged the court to take this case to resolve the fact that some circuits do review asylum denials. Sauer wants the Supreme Court to tell those circuits that they are wrong.
The Republican justices almost certainly will. Republicans always like to pretend that every potential non-white immigrant is more like Wilfredo than Urias-Orellana. They ignore the fact that people like Wilfredo are doing quite well in their home countries and have little need to seek “asylum” in the US. Wilfredo ain’t the one who needs to leave. But Republican judges have sent immigrants back to their doom in situations even more deadly than the one faced by Urias-Orellana and his family.
Sometimes, I wish Republicans would just read the case histories of asylum seekers. Like, really read them, and imagine themselves in their situations. Of course, that is me being naïve. Republicans can read. What they can’t do is care.
Urias-Orellana will probably lose this case, 9–0. The liberals will go along with sending him back to Wilfredo to mitigate whatever unhinged claptrap Sam Alito would write if this case were decided 6–3.
This list of five vile things the Supreme Court will do this term should make us revolt against the Supreme Court as a staff, jurisprudential label, and freaking crew. And yet it probably doesn’t capture the worst things the court will do because the court hasn’t even slated all its cases yet. It’s likely that we’ll get a new birthright citizenship case before next June, to say nothing of all the crazy, fascist things Trump will orchestrate in the coming months that will wind up on the court’s shadow docket to be approved without debate by the Republican supermajority.
And at the end of the term, next June, we might get the most important decision of all: an announcement from either Samuel Alito or Clarence Thomas that they are retiring and thus giving Trump yet another justice who will hold us hostage for the rest of our lives.
It will be easy to despair as the court’s decisions roll in and Trump continues to rack up victories in front of his handpicked justices. But I can only hope that the court’s capitulation to Trump and his fascist regime breaks Democrats and the left wing more generally of their institutionalized learned helplessness.
The Supreme Court does not have the final say over how we have to live as a society. We do. The Supreme Court is not even the supreme arbiter of what is constitutional and what is not. We are. By ignoring court decisions he doesn’t like and continuing to act regardless of judicial or constitutional approval, Trump has proved that these justices’ rulings mean nothing in the face of a committed political party hellbent on having things its way.
A new left-wing political approach must emerge from the Supreme Court’s destruction of laws and rights—an approach that doesn’t rely on the courts to enforce social progress, but relies on the people to force social progress on the courts. The strategy of suing our way to freedom, equality, and social justice has failed. It’s time for a new strategy, one that puts the Republican politicians running the Supreme Court back in their place.
Getting Back in the Ring
Republicans may think they can achieve salvation through Christ, but they know that they can achieve victory through the courts. Republican voters do not vote for primary candidates who don’t focus on the courts, and that is the key reason they have been able to reshape this branch of government in their image.
In contrast, Democrats have dropped the ball on this issue. Democratic voters regularly vote for senators and even presidents who do not care about the courts and are unwilling to challenge their authority. I believe this is largely because of information asymmetry between the parties’ voters on this issue. Republican candidates use a tight lexicon to convey where they stand on the courts—think “supports the Second Amendment” or “believes in the original Constitution”—while Democrats are all over the map. Democrats don’t even have a consistent jurisprudential philosophy, much less one that can easily be conveyed on a bumper sticker. Our voters do not know the difference between, say, Sheldon Whitehouse and Dick Durbin when it comes to the courts, even though that difference is as stark as an ICBM versus a wet noodle.
I think liberal organizations need to start putting out a “scorecard” that grades Democratic candidates on their commitment to resisting and reforming the courts—some kind of easily digestible shorthand that would help voters know who their friends are and who doesn’t have the stomach for the fight. It works for the National Rifle Association: An “A” rating from the NRA is coveted by Republican primary candidates. We should do something similar.
There are a number of organizations that could do this work. I’m a board member of Demand Justice, which is an organization committed to court reform. I also do a lot of work with Court Accountability, a nonpartisan organization that highlights the corruption of the courts. And the American Constitution Society has long attempted to get liberals to take the courts more seriously. There are other groups as well.
The problem for any group trying to hold elected Democrats to a standard for court reform is that elected Democrats will get angry at that group and not invite them to whatever reindeer games they’re playing inside the Beltway. Democratic donors, for reasons completely passing my powers of understanding, have generally been reluctant to spend big money on controlling the Supreme Court the way Republican donors have for decades.
But I believe that the left needs this. We need a common, easy way to signal to voters which candidates will take power away from the court and give it back to the people—and which ones just want a better parking space in DC and are content to let the Supreme Court make all the important decisions.
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