US Supreme Court accumulates more and more power and worries jurists

The usual criticism leveled at the US Supreme Court these days is that it has drifted too far to the right and is out of step with the public on many issues. This is true, but it is not the whole truth.

A series of recent legal studies spell out a deeper problem, saying that today’s Supreme Court is unique in a different way: It has been rapidly accumulating power at the expense of virtually every other part of government.

This phenomenon was documented last month by Stanford University law professor Mark A. Lemley in an article published in the Harvard Law Review under the title “The Imperial Supreme Court.”

“The court has not favored one branch of government over another, nor the states over the federal government or the rights of individuals over governments,” Lemley wrote. “What it’s doing is taking power away from everyone at the same time.”

“It’s a court that is consolidating its power, systematically undermining any branch of the federal or state government that might threaten its power, while undermining individual rights.”

This point seems to have been illustrated by the discussions held this month around the role of state legislatures in defining the rules of federal elections. The questioning suggested that the Supreme Court is unprepared to adopt a groundbreaking legal theory that would override customary checks and balances at the state level in election litigation.

Instead, Supreme Court justices seem willing to increase their own role in the process, granting themselves the right to do something that is normally forbidden: challenge state courts’ interpretations of state law.

In a similar vein, Justice Elena Kagan highlighted the imperial bias of the Supreme Court majority in dissenting a ruling announced in June that limited the Environmental Protection Agency’s (EPA) ability to fight climate change.

“The Supreme Court has appointed itself — rather than Congress or the expert agency — the decision maker on climate policy,” Kagan wrote. “I can’t think of many things that are scarier than that.”

A second study, this one to be published in Presidential Studies Quarterly, focused on processes involving the Executive and presented data reinforcing Lemley’s observations. Based on 3,660 Supreme Court decisions since 1937, the study concluded that the Court led by Chief Justice John Roberts since 2005 has demonstrated “unique willingness to curb executive authority.”

This tendency was even more pronounced in cases discussed in law school texts, having been highlighted on the front page of the New York Times. In the era when the Supreme Court is presided over by John Roberts, the Executive has won these cases just 35% of the time — more than 20 percentage points below the historical average.

The study’s authors, Rebecca L. Brown and Lee Epstein, both of the University of Southern California, wrote that “there is little evidence that the Roberts Supreme Court’s willingness to make decisions contrary to the president bears any relationship consistent with preserving the balance between the powers or with the functioning and accountability of the democratic process”.

“Instead,” they wrote, “there are increasingly frequent indications that the Court is establishing a position of judicial supremacy over the President and Congress.”

Brown added in an interview that the nature of the Court’s reasoning has changed.

“In the past, when the Court ruled in favor of the President, it did so with a kind of humility,” she wrote. “The judges were saying, ‘It’s not up to us to make this decision. Let’s respect the president’s position. He’s the winner.’ Today the court says: ‘The president wins because we think he is right.'”

And the Supreme Court appears to no longer trust the lower federal courts. For example, it has routinely tried cases before federal appeals courts have tried them, using a procedure called “pre-trial certiorari.” In the past, this was reserved for exceptional cases, such as President Richard Nixon’s refusal to hand over recordings to a special prosecutor or President Harry Truman’s takeover of the steel industry.

Prior to 2019, the Supreme Court had not used this procedure in 15 years, according to statistics compiled by Stephen Vladeck, a professor of law at the University of Texas at Austin. Since then, he discovered, she has worn it on 19 occasions.

The Supreme Court has been using another kind of shortcut to increase its power, as two law professors—Lisa Tucker of Drexel University and Stefanie A. Lindquist of Arizona State University—demonstrate in a recent essay. Increasingly, they wrote, the Supreme Court “has been ignoring legally important lower court decisions as if they never happened, invalidating them in summary procedural orders.”

Yet another study, this one by Tejas Narechania, a professor of law at the University of California at Berkeley, examined cases selected by Supreme Court justices for a thorough review based on their merits.

“More than any other Supreme Court in history, the Roberts Supreme Court uses its discretion to select cases that allow it to review and override precedent,” concluded Narechania in the study, which will be published in the St. Louis University Law Journal and which expanded on an earlier study that appeared in the Columbia Law Review.

In September, speaking at a conference of jurists, John Roberts insisted on the primacy of the Supreme Court.

“We don’t want the political branches to tell us what the law is,” he said, echoing Chief Justice John Marshall’s famous statement in a pivotal 1803 decision in Marbury v. Madison: “It is emphatically the competence of the judicial branch and its duty to say what the law is.”

This sentence is appreciated by the current Supreme Court. Brown and Epstein wrote, “In the history of the Supreme Court, more than half of the total number of majority or concurring opinions that cited this Marbury statement were written by the Roberts Supreme Court.”