Whether the U.S. Supreme Court under Chief Justice John Roberts will continue to push American jurisprudence to the right -- bending the law toward its preferred policy outcomes, rather than precedent or originalist intent -- is no longer up for debate.
Devon Ombres
The question is how brazenly and quickly it will press forward in dismantling democratic guardrails and protections against government aggression.
Look no further than the spate of unreasoned "shadow docket" decisions issued by the court over the summer. They show the court is moving to the right at unprecedented speed.
The majority’s decisions — especially in shadow docket cases, which are temporary, emergency orders — always seem to favor the Trump administration. The court regularly stayed lower-court injunctions that would have maintained the status quo while significant cases were being litigated.
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The court permitted the Department of Education’s effective dismantlement in McMahon v. New York. It ended nationwide injunctions preventing the government from acting in potentially illegal and unconstitutional ways in Trump v. CASA. It allowed the government to deport immigrants to third countries — such as El Salvador, South Sudan, Eswatini and Uzbekistan — without consideration for whether they could face violations of the Convention Against Torture in DHS v. D.V.D.
In Trump v. Slaughter, the Roberts Court effectively overturned the 90-year-old precedent of Humphrey’s Executor v. U.S., which restricted the president from firing members of congressionally created agencies without cause. Likewise, in Department of State v. Aids Vaccine Advocacy Coalition, the court undermined Congress’ constitutional power of the purse, finding instead that the administration can withhold appropriated federal funds against Congress’ mandate.
Even five years ago, many of these decisions would have been considered beyond the pale of judicial legitimacy, because they override longstanding precedent and the historical understanding of the constitutional separation of powers. Now, they’re handed down every week. Indeed, Justice Clarence Thomas recently indicated during a speech at Catholic University that he was more than willing to overturn precedent if he thinks it’s "totally stupid.”
To that extent, the court has been asked to reconsider its 2015 Obergefell v. Hodges decision, which legalized same-sex marriage nationwide.
In the court's coming term that starts Oct. 6, the Roberts Court will have the opportunity to destroy what remains of the Voting Rights Act of 1965 (VRA). In Callais v. Louisiana, the court has been asked to strike down Section 2 of the VRA, which it upheld as recently as 2023, prohibiting racial discrimination in the creation of voting maps.
In NRSC v. FEC, the court has been asked to overturn a 2000 case prohibiting unlimited monetary campaign coordination between individual candidates and parties.
If the Roberts Court sides with the challengers in these cases, it will lead to more anti-democratic gerrymandering and the influence of special interest money in elections, both of which are highly unpopular.
The court also will hear three cases involving LGBTQ+ rights — Little v. Hecox (banning transgender students from collegiate sports), West Virginia v. B.P.J. (prohibiting transgender students from high school sports) and Chiles v. Salazar (questioning whether state conversion “therapy” bans violate the First Amendment). A finding in favor of bans on transgender students’ participation in sports would likely supercharge the nationwide anti-trans movement.
Notably, fewer than 10 transgender athletes out of 500,000 are competing in college sports, according to the president of the NCAA. Transgender students account for 1% of the 8 million high school athletes in the nation, according to a study by the UCLA Law School. Likewise, a finding that conversion therapy bans are unconstitutional would result in significant damage to the people subjected to it. Conversion practices are linked to depression, PTSD, suicidal thoughts and more.
The Roberts Court is no longer hiding behind a veneer of impartiality. Its right-wing decisions will only accelerate this fall.
Ombres is the senior director for Courts and Legal Policy at the Center for American Progress. He wrote this for InsideSources.com.
