In three cases that the judges will hear in the next few months, they will have the chance to get more power for themselves.
The Supreme Court of the United States met again on Monday after making a string of decisions about abortion, gun safety, LGBTQ rights, and affirmative action that changed the way people live. But anyone who thought this year’s term would be quiet will be let down. This is because the most important cases this year are all about a very interesting question: In our system of government, who is the most powerful person? Is it the American people or the nine justices who were not chosen by the people?
All of the court’s most important cases contain arguments about where in our constitutional order the power to solve important social problems should lie. The traditional answer, and the American ideal, has been to put as much power as possible in the hands of elected leaders who will listen to us because we can vote them out of office.
But in three different cases in the coming year, the court may take that power for itself, taking it away from our elected politicians, a president who is answerable to the people, and maybe even juries made up of regular Americans. In other words, all three cases make it possible for the top court in the country to take over.
Start with United States v. Rahimi, which is a case about the legality of a federal rule that takes guns away from people who abuse their partners. At the center of the case is a huge problem with public health. About 70 women are shot and killed by people they know every month, on average. To be clear, this problem is not just about violence in the home. It’s about guns. For example, researchers have found that a woman’s attacker is five times more likely to kill her if he has a gun.
In 1994, Republicans and Democrats in the House and Senate worked together to solve this problem by passing a federal law that makes it illegal for someone to have a gun if they are under a court-issued protective order for domestic violence. People who break the law can get up to 15 years in jail.
This law is a great example of how laws are meant to be made in a democracy. When the American people saw that there was a serious threat to public safety, they pushed our elected officials to pass a real safety measure. In the Rahimi case, though, the Supreme Court will soon tell us if we were wrong to think we had so much power all along.
It will do this because, in its 2022 decision in New York State Rifle & Pistol Association v. Bruen, the court said that it, not the people’s elected lawmakers, would have the final say on gun safety measures. Instead of letting the people and our legislatures decide how to balance public safety and gun ownership, the court said that from now on, five justices can overturn any law they think isn’t in line with “this nation’s historical tradition of firearm regulation.” If the court throws out the federal rule at issue in Rahimi, it will be more than a dangerous blow to people who have been abused at home. It will hurt our system in a big way.
In Loper Bright Enterprises v. Raimondo, the court may try to get more power. In this case, the question is whether the court should overturn its 1984 decision in Chevron v. Natural Resources Defense Council, which is the most often-used administrative law decision in its history. In Chevron, the court said that when there are multiple reasonable ways to understand a law, courts should usually go with the way the federal body that runs the law wants it to be understood.
The conservative justices on the court have been very critical of the Chevron theory. That shouldn’t be a big surprise, since the same judges often disagree with the policy ideas put forward by agencies under Democratic presidents. When the Occupational Safety and Health Administration and the Centers for Disease Control took action against Covid-19, for example, it was the conservative justices who pushed back, saying that the agencies had gone beyond their legal power.
The partisan voting patterns of the justices, on the other hand, show why we need the Chevron law in the first place. At the end of the day, the ideology is a bet that democracy is better than aristocracy. When Congress passes a vague law in a field that is hard to understand scientifically or politically and tells an agency to carry it out, who would you rather have in charge of that law: unelected judges or a president who is responsible to voters for what his agencies do?
Justices from both parties, including the late Antonin Scalia, who was one of Chevron’s most ardent defenders, picked the second method for decades. But the court seems ready to overturn this long-standing rule and say that it, not the president we elect, should be in charge of fixing our country’s toughest policy problems in areas like environmental law, public health, and immigration.
Lastly, the most important legal cases that could go to court this term are the ones against Donald Trump for trying to change the results of the 2020 election and mishandling classified papers. The court has not yet agreed to hear the case, but it seems likely that they will end up there because Trump has already shown that he plans to use official protection and the First Amendment to defend himself under the Constitution.
If these arguments are turned down before the trial, the former president would probably have to wait until after the final verdicts and possible convictions by juries made up of regular Americans to go to the Supreme Court. But, with the next presidential election coming up in 2024, it’s still possible that the justices will have to decide on Trump’s claims during the next term.
Notice, though, how a decision like this would change the way things work. The court would be asked to ignore the well-thought-out opinions of a jury of ordinary people in favor of its own lawyerly opinion. Alexis de Tocqueville once said that the American jury “places the real direction of society in the hands of the governed, not in the hands of the government.” So, the pending Trump prosecutions are another area where the justices may soon decide whether we or they are responsible for fixing our most pressing social issues.
None of these possible results is a sure thing. Maybe the judges will go against the recent trend and realize with humility that they don’t know everything and that their repeated, overconfident actions can hurt the public more than help it. That would be a good thing to happen.
Or, the court might keep moving toward becoming an empire, which would give it even more power than it already has. But if it does that, it will lose a lot of public credibility. Faced with the possibility of being ruled by an unaccountable and self-promotional court, the American people will have even more reason to demand major structural changes to the court system, like term limits, authority stripping, and even court packing.
So, the stakes could not be higher as the court starts its new term. Not just for the court as an institution, but also for all Americans who care, and for the idea of self-government itself.