The past few years have marked the rise of the imperial Supreme Court. Armed with a new, nearly bulletproof majority, the Court’s conservative justices have embarked on a radical restructuring of American law across a range of fields and disciplines. Unlike previous changes on the Court, this one is not marked by debates over federal power versus state power, or Congressional power versus judicial power, or judicial activism versus restraint. Nor is it marked by the triumph of one form of constitutional interpretation over another. On each of those axes, the Court’s recent opinions point in radically different directions. The Court has taken significant and simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts. And it has done so using a variety of (often contradictory) interpretive methodologies. The common denominator in multiple opinions over the past two years is that they concentrate power in one place: the Supreme Court.

My goal in this essay is not to criticize these decisions on the merits, though there is much to criticize; Many others will. Nor do I intend simply to make the realist legal argument that the justices will do whatever they want in the cases before them, though recent mandates also provide ample evidence of that claim. Rather, my argument is that the Court has begun to implement the political preferences of its conservative majority in a new and troubling way: by simultaneously stripping power from every political entity except the Supreme Court itself. The Court lately gets away with it not by giving power to an entity whose political predilections are aligned with those of the justices, but by undermining the ability of any entity to do anything the justices don’t like. We are in the era of the imperial Supreme Court.

In Part I, I show that the Court has not been favoring one branch of government over another, or states over the federal government, or the rights of individuals over governments. Rather, it is stripping power from all of them at once. I also show that this result cannot be explained by any consistent judicial philosophy. The Court is happy to embrace conflicting philosophies to achieve the ends it desires in the case before it. In Part 2, I suggest that the imperial Supreme Court is something new and dangerous and that we need to consider more radical options to protect the American form of government.

I. Concentrating Power in the Court

If Justice Stewart were on the Supreme Court today, he might have to revise his famous aphorism. The only consistency I can find in modern Supreme Court cases is that the Court always wins. Political debates over the Court’s role in earlier eras tended to focus on the relative allocation of power among other parts of government. Did the rise of the administrative state take too much power out of Congress’s hands and give it to the executive branch? 2 Did “activist” federal courts overreach by striking down acts of Congress as inconsistent with the Constitution? 3 Did the growth of federal power (legislative or judicial) encroach on the power of the states? 4 The Court in different periods has sided with different political actors in each of these debates.

What is different about the modern Court is that it does not seem to always take one side or the other in any of these debates. Let us consider each of the potential power-holders in our federal system.

A. Administrative Agencies

Conservatives have long sought to rein in the power of the administrative state (though curiously those efforts seemed to be put on hold during the Trump administration). Many of those efforts have focused on the “Chevron deference” that courts have granted since 1984 to agency interpretations of unclear legal mandates. 6 That deference is based on agency expertise, and has traditionally been greatest in complex areas where agency expertise matters most. 7

Despite the expectations of some, the Court did not overturn the Chevron decision last term. Instead, it took an even more powerful step to limit agency power. In West Virginia v. EPA,8 the Court held that agencies may not take action on anything the Court deems an “important question” without clear and explicit approval from Congress, no matter how detailed and tied to agency expertise that question is and no matter how Congress intended to delegate that question to the agency. 9 Indeed, the facts of West Virginia v. The Court’s decisions on the EPA’s carbon emissions involve individual decisions about how to account for carbon emissions from a variety of different polluters, decisions that must be made in response to constantly changing conditions;10 it is impossible to imagine Congress making such decisions on its own on an ongoing basis. Thus, the practical effect of the decision is to make it impossible for the EPA to regulate carbon emissions from coal plants and to sharply limit its power to deal with climate change more broadly.11

The “significant issues” doctrine that the Court employed is a recent judicial invention, with no basis in the Constitution or Congressional mandate.12 It appears to be designed to allow the Court to reject significant agency actions that are within its grant of power but that the agency implements in ways the Court does not like, such as the EPA’s efforts to restrict carbon emissions in West Virginia v. EPA. Justice Gorsuch’s concurring opinion would have gone even further, bringing to light the idea of ​​a “nondelegation” doctrine that would sometimes prohibit Congress from authorizing agency action no matter how clearly Congress expresses that preference.13

West Virginia v. EPA is the most recent and most significant example of the Court taking power away from administrative agencies, but it is far from the only one. The Court also used “emergency” procedures to block implementation of EPA water quality standards.14 It struck down most of the government’s vaccination mandates, in part by substituting its own judgment on COVID-19 harms for that of the agency15 but in part by declaring that the Occupational Safety and Health Administration does not have the power to issue regulations governing workplace health and safety unless those regulations regulate harms that exist only in the workplace.16 In recent years, the Court has stripped away the Federal Trade Commission’s (FTC) power to seek restitutionary remedies in enforcement actions in federal court, following what appears to be the clear language of the FTC Act17 but overriding or ignoring its own prior precedent and historical understanding of equitable powers.18 Notably, while the Court has not overturned Chevron, it often decides these cases without citing or applying Chevron at all.19 And it has held that federal judges have not ruled in favor of Chevron. administrative law are unconstitutional unless they are confirmed by the Senate or their decisions are subject to discretion. The Supreme Court has not (yet) gone so far as to dismantle the administrative state, but it has clearly embarked on a project to rein in the power of administrative agencies, at least when they do things that the current majority of the Court does not like.By contrast, the Court apparently did not view the Trump administration’s ban on all immigrants from certain countries or the Trump administration’s regulatory exemption from the Affordable Care Act’s contraception mandate as involving “significant issues.”21 Some of that difference may reflect the Court’s majority’s support for the Trump administration’s policies on the merits. But it may also reflect a difference between the current majority’s view of administrative agencies and its view of presidential power. The latter has continued to expand in recent years.22 Indeed, the Court has recently embraced the consolidation of presidential power over agencies under a theory called the “unitary executive.”23 Whether conservative judicial support for presidential power will survive the transition to a Democratic president remains to be seen. But as Blake Emerson notes, there is considerable tension between the Court’s “unitary executive” idea and its increasing scrutiny of agency action.

B. Congress

While the Court’s effort to limit agency power might in turn appear to transfer power to Congress, which has traditionally been on the other side of battles over separation of powers,25 the Court is also curtailing Congress’s power. In the most radical case, in TransUnion LLC v. In the case of Ramirez,26 the Court held that Congress had no power to create a cause of action enforceable in federal court based on a new theory of harm unless that new theory of harm was analogous to one that existed at the time of the Founding.27 In that case, Congress created a cause of action for individuals whose data was deliberately mishandled by credit reporting agencies, giving them the right to recover statutory damages of $100 to $1000 even if they could not prove that they suffered financial harm as a result of being misclassified.28 The Court held that while Ramirez, who was misclassified as a terrorist by the credit reporting agency, suffered harm, other class members who could not prove financial loss could not bring suit to enforce the statute because there was no “case or controversy” under Article III.29

While a plaintiff’s ability to collect statutory damages would naturally seem to satisfy the “case or controversy” requirement, the Court held that it did not because Congress could create new causes of action. action only if They concerned types of damages analogous to those considered by courts in the 18th century.30 The Court held that the ability to collect $1,000 in statutory damages did not meet the requirements.31 Justice Kavanaugh’s opinion for the Court was express in his concern that if the Court allowed Congress to create new causes of action, people might seek relief for other forms of harm that Congress chose to recognize.32 The Court specifically mentioned environmental damage as an example of something for which Congress could not legislate a cause of action,33 which is particularly ironic in light of West Virginia v. EPA. But its implications may be much broader, overriding statutory damages standards in very different fields like copyright34 and calling into question the power to create procedural mechanisms like class actions.

TransUnion is not alone in restricting Congress’s power to act. In 2022, the Supreme Court rendered campaign finance reform (even further) ineffective in FEC v. Ted Cruz for Senate,35 by holding that candidates had a First Amendment right to loan unlimited amounts of money to their own campaigns and then collect otherwise law-breaking campaign contributions to repay themselves for that money.36 On another occasion, it held that Congress had no power to create a new agency whose head could not be summarily fired by the President, even though numerous government agencies and commissions have long had independent leadership.37 And it stood in the way of efforts by congressional committees to subpoena Trump Administration documents in Trump v. Mazars USA, LLP.38 This is part of a longer-term effort to curtail the power of Congress39 even when it is expressly delegated by the Constitution.40 And while courts have always restricted Congress’s power to act unconstitutionally,41 what is notable about TransUnion and Mazars is that they reflect a judicial decision to reject Congress’s power even in the absence of a claim that it violated any constitutional right.

C. Federal Courts

If the Supreme Court is limiting the power of both Congress and the executive branch, perhaps that power is shifting to the federal courts, giving them greater power to police the actions of the other branches of government? Indeed, however, the Court has also limited the power of lower federal courts in a variety of ways. Over the past two terms, the Court has held that federal courts cannot review agency immigration decisions even when they clearly violate the law, upholding but also expanding statutory restrictions on judicial review of detention, deportation, and discretionary relief. 42 And the Court has proven no more receptive to new judicial initiatives than it has to those of Congress or the executive branch. It has restricted the power of federal courts to apply common law principles of tort,43 the power of courts to remedy unquestioned constitutional violations,44 and the ability of juries to award punitive damages.45 It has expanded the doctrine of qualified immunity to such an extent that no right seems “clearly established” unless the Supreme Court itself has held it so, regardless of how clear the law may be in the appellate courts.46 Nor is the Court simply restricting the continued development of the common law and equity. It has limited the traditional powers of federal courts in equity, construing even an express grant of equity power in the Lanham Act so narrowly that it might as well not exist.47 Three or perhaps four justices in Minerva Surgical, Inc. v. In Minerva, even a century of applying estoppel doctrine in equity did not qualify as making it part of the “backdrop.” This is a remarkable change from the broad grant of powers that has characterized equity for centuries. 51

Procedural changes at the Court have also undermined the power of lower courts, both by refusing to give deference in places where it has long been deemed due and by trampling on the rules of equity governing stays. As Stephen Vladeck and others have documented, the Court is increasingly making significant changes to the law on what William Baude has called the “shadow docket” without full presentation or argument. 52 Indeed, the growth of the shadow docket is so dramatic that the Court, in the last term, issued more “emergency” orders than opinions in cases on its regular docket. 53 And those cases increasingly concern not just procedural issues like stays but also full rulings on extremely important and controversial issues. In the last term, for example, the Court struck down the government’s vaccination mandate54 and required both Alabama and Louisiana to hold elections using an illegal map, all without regard to the merits. 55

The result has been, as Justice Kagan noted, that “the Court’s emergency docket is not fit for emergencies at all. [It] becomes just another venue for merits determinations, unless they are made without a full statement of reasons and arguments.”56

The Court’s increasing use of the parallel docket has been accompanied by a rather striking disregard for the traditional rules of equity governing stays and other temporary relief. While the Court itself set out those rules in no uncertain terms not too many years ago,57 it has largely disregarded them in the interest of quickly achieving the result it desires rather than waiting for a full statement of reasons. In issuing a stay vacating the vaccination mandate for government contractors, the Court not only ignored the normal purpose of a stay—to preserve the status quo pending a full substantive hearing58—but affirmatively announced that it was free to ignore the balance of hardship and public interest entirely, paying attention only to the question of who was likely to ultimately win the case.59 That is directly contrary to the law, which requires that relative hardship to the parties and to the public be considered before issuing a stay.60 The Louisiana case is a particularly striking departure from procedural norms. There, the Court turned a motion to stay an injunction into a merits case prior to a final judgment on the merits and then immediately ruled on that newly created merits case.61 In doing so, it effectively vacated the detailed decisions of both the district court and the Fifth Circuit without even considering the briefing on the merits, much less giving deference to the lower courts’ findings of fact.

The Court’s disregard for procedure and the deference it is supposed to give to factual findings is not limited to the parallel record. In Kennedy v. Bremerton School District,62 the Court took the remarkable step of rewriting the facts of the case, ignoring what actually happened (as found by both the district court and the appellate court and documented with photographs), and redacting its own (false) set of facts to tell a story more favorable to the outcome it wanted to achieve.63 It has reached out to decide issues not raised in the case before it,64 despite clear and long-standing rules against issuing advisory opinions.65 And it has repeatedly violated its own rules on standing and irrelevance, dismissing real controversies between parties with a concrete interest for lack of standing in TransUnion66 at pp. 102–03. and Whole Woman’s Health v. Jackson,67 while overlooking issues of standing and even irrelevance when the Court has decided it wants to rule on a particular issue, as it did in West Virginia v. EPA.68

The practical effect of these changes has been that while the Court is taking power away from Congress and the executive branch, it is not giving that power to the lower federal courts. On the contrary, it is hamstringing them by bypassing long-standing procedural and substantive rules and its own doctrine to reach, take up, and decide important legal questions that are not raised at all or that have not gone through the courts to establish a record.

D. States

In turn, all of this might seem to shift power to the states. Conservatives of another era pushed for more power for the states vis-a-vis the federal government. The Court’s previous limits on federal power often expressly delegated that power to the states.69 And some cases, such as Dobbs v. Jackson Women’s Health Organization,70 do give power to state governments, albeit at the expense of individual rights. But the current Court has regularly imposed new limits on the states’ power to regulate in areas where they have long been able to do so, from public health to public safety. Last year, the Court held that the state of California had no power to prevent the spread of COVID-19 by applying neutral rules of general applicability governing group gatherings at churches.71 It held that public school districts had no power to prevent their employees from leading students in public prayer on school grounds during school events.72 It expanded its series of decisions by holding that the Federal Arbitration Act73 (FAA) preempts virtually all state and federal causes of action.74 And it struck down New York’s law regulating the carrying of guns in public places, creating a new constitutional right to bear arms that does not appear to be limited by most state registration or security requirements.75

The Court appears poised to further intrude on states’ rights in the coming term. The Court granted certiorari in a voting case in which the petitioners argue that state courts and executive officials have no power to enforce state election laws and constitutions and that state legislators should be the sole decision-makers in federal elections.76 A decision in favor of the petitioners would not only be a notable intrusion into the state legal process—essentially, holding that Marbury v. Madison77 is federal law but that states are prohibited from enforcing it—but would also present a real risk that the United States would no longer be allowed to hold democratic elections.78

In each of these cases (except Dobbs), the Court took power away from the states.79 Some of those cases involved the Court’s expansion of the few individual rights it favors. More on that in the next section. Others involved the Court’s intervention in how states decide things. But each of them stripped the states of power they had long held in areas of their core purview: health care and safety, public education and the design of their own governments. And even Dobbs put a different kind of power in the hands of the current Court: the power to overturn previous Supreme Court decisions it simply doesn’t like.

E. Individual Rights

One might think that limiting the power of all branches of government at all levels would consequently increase the freedom of individuals, who are less subject to government regulation. In reality, however, with the exception of a few favored areas where the Court created new rights (the right to bear arms in public80 and the right of government officials to pray at public events81), the Court’s recent history has been one of taking away rights from the public. The most famous case is its elimination of the right to reproductive freedom, giving states the power to compel births. 82 It has also effectively eliminated the power of federal courts to enforce voting rights, announcing that it was withdrawing from efforts to protect voting rights against partisan gerrymandering of electoral districts a few years ago,83 and following through with affirmatively preventing federal and possibly even state courts from blocking gerrymandering schemes that were admittedly discriminatory. 84 And it declared that one of the most famous rights granted to criminal defendants—the Miranda warning—was not in fact a right at all that citizens could enforce, but only a prophylactic rule that the Court could change at any time. 85 At least one justice signaled a desire to go further by dismantling protections for marriage equality and access to contraception. 86

F. Judicial Philosophy

Nor can these shifts be explained by any particular judicial philosophy, whether originalism, textualism, dictionary fetishism, stare decisis, or anything else. Conservative judges regularly recite their allegiance to each of these methodologies. And sometimes they apply them. But they are equally willing to depart from them when it suits them.

Textualism is the backbone of conservative decisions—until it isn’t. In West Virginia v. EPA, the Court ignored the D.C. Circuit’s close textual reading of the Clean Air Act in favor of a judicially created constitutional doctrine that was first mentioned more than a century after the founding and has not really been applied until recent decades.87 In New York State Rifle & Pistol Ass’n v. In Bruen,88 the Court ignored the text of the Second Amendment to create a new constitutional right that overrode the ability of states to regulate guns.89 In Kennedy, it ignored not only the text of the First Amendment but also the facts of the case before it to strike down most of the Establishment Clause.90 I have written elsewhere about the Court’s inconsistent use of dictionaries, which seem primarily to provide cover for whatever version of the plain meaning the judge invoking the dictionary seems to prefer.91

Originalism fares no better. Both Bruen and Kennedy ignored the original interpretation of the Constitution to implement a decidedly new version of the First and Second Amendments that would be largely unfamiliar to the framers of the Constitution.92 The Court’s decisions invalidating the Voting Rights Act’s crucial preclearance regime93 manifestly ignored that law’s purpose and history.94 And in Dobbs, the Court went to great lengths to concoct a story suggesting that the Founders intended to regulate abortion while ignoring evidence to the contrary.95 Even the rare decision that expanded individual rights—Justice Gorsuch’s 2020 decision in Bostock v. Clayton County96 prohibiting workplace discrimination on the basis of sexual orientation and gender identity—reflected a clear departure from Title VII’s original intent.97

The Court is no longer constrained by the principle of fidelity to past precedent. Dobbs, in particular, shows the limits of stare decisis as a constraint on judicial activism. In that case, the Court expressly overruled fifty years of precedent, including its own prior decision in Planned Parenthood of Southeastern Pennsylvania v. Casey98 that it should not overrule established precedents on the abortion issue.99 But while Dobbs is the most dramatic example, it is not the only one. Vega v. Tekoh100 essentially overruled Dickerson v. United States,101 giving no weight to stare decisis by undermining the constitutional importance of the Miranda warning when it comes to private claims for violation of constitutional rights.102

None of this is to say that textualism, originalism, and fidelity to precedent are not playing a role in the opinions of the modern Court. But they are tools that judges use to achieve particular results that those judges have already decided they want to achieve; they cannot explain those results because they are not used consistently.