(A note to our readers: Regular Pitch writer Zach Silk is out of the office. While he’s away, Civic Ventures fellow Paul Constant will contribute guest essays. Zach will return in the July 18th edition of The Pitch.)
In terms of pure word count, the Constitution doesn’t actually have too much to say about the Supreme Court. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” the founders wrote.
They continue, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
There are a couple more paragraphs, mostly detailing the kinds of crimes courts can address, but that’s basically it. The Founders devoted much more space in the Constitution for Congress and the President, but the Justices on the Supreme Court pretty much have three Constitutional edicts: Be good, judge cases, and get paid on a regular basis.
It’s fascinating that so many of the conservative Supreme Court Justices identify themselves as Constitutional originalists, claiming fealty to a document that barely bothers to mention them. And what’s especially fascinating is how truly radical the so-called “conservative” Roberts court has proven itself to be—especially in this year’s rulings.
Monday’s immunity ruling, in which the six conservative Justices found that presidents are immune from prosecution when committing “official” acts of the presidency, sparked outrage from the three liberal Justices, and then from virtually every corner of the media. And that outrage was warranted! The Supreme Court bestowed upon the President of the United States a level of immunity from prosecution that previously was only enjoyed by dictators and kings.
As Justice Sotomayor pointed out in her dissent, there’s nothing Constitutional about broad immunity for elected officials. Even though the Constitution says surprisingly little about the Supreme Court, the Founders had an awful lot to say about corruption, treason, and keeping elected officials accountable. It’s not a stretch of the imagination to argue that the Founders would be aghast at the Roberts Court’s decision that the President of the United States is above the law.
Why Overturning Chevron Is a Disaster for Everyone
The conversation about the immunity decision will likely rage on for months, years, and decades to come. But Monday’s deluge of headlines seemingly swept from the conversation another ruling on Friday that entirely changed the federal regulatory landscape. Amy Howe explained on SCOTUSBlog that the Supreme Court’s overturning of the Chevron ruling “cut back sharply on the power of federal agencies to interpret the laws they administer and ruled that courts should rely on their own interpretation of ambiguous laws.” Howe continued, “The decision will likely have far-reaching effects across the country, from environmental regulation to healthcare costs.”
That’s putting it mildly. Howe explains that in the 1980s the Supreme Court ruled in Chevron v. Natural Resources Defense Council that “if Congress has not directly addressed the question at the center of a dispute, a court was required to uphold the agency’s interpretation of the statute as long as it was reasonable.”
Most laws are written fairly broadly, and regulatory bodies govern very specific and detailed information that changes over time and in different contexts. It’s impossible for Congress to predict or stay on top of, for instance, researchers’ changing understanding of brominated vegetable oil. When they established work safety laws, Congress had no way to predict that climate change would create extreme heat conditions that imperiled the health of millions of workers. That’s why we employ highly educated experts—to apply the law in a way that reflects our growing understanding of the world and the complex nuances of our interactions with business.
When interpreting laws, judges until last week were expected to defer to the staffers of regulatory bodies, who had more education and hands-on experience in the highly complex matter at hand. By overturning Chevron, the expertise and experience of regulatory staffers is thrown out and replaced by the judicial system. Judges are expected to substitute their own lack of expertise when interpreting the law and not take the expertise of regulators of air pollution, machinery safety standards, and public health into account.
If we lived in a world where impartial judges pushed aside political biases in order to make objective decisions that worked toward the betterment of the whole nation, that ruling might not result in a total disaster. But we don’t live in that world. Judges make nakedly partisan rulings all the time, from trying to undo the FDA’s approval of the abortion pill to banning Texas workers from benefiting from this week’s updated time-and-a-half overtime pay standards to blocking student loan forgiveness programs. This ruling means that any industry can take any regulation to a sympathetic judge, who has more power than ever to completely undo the regulation from the bench.
You start to see the problem here. “Agencies charged with consumer protection, such as the Consumer Financial Protection Bureau and the Federal Trade Commission, often face opposition from financial service firms and other private-sector companies, which may claim that new rules constrain their ability to compete or cost them too much,” notes CNN.
So if an employer argues that any number of worker protections—including the overtime threshold, workplace safety standards, and other vital rules—interferes with their ability to turn a profit, and if that employer finds a sympathetic judge to hear their case, it’s possible that those regulations could now be unspooled. Virtually every new regulation will have to run a gauntlet of potential lawsuits, and the survival of those regulations will be left up to the whims of whichever judge is assigned the case.
A judge could decide to wipe out your health care access, too. “The laws created to allow these health agencies the authority to regulate the country’s complex health sector were written in a purposely ambiguous way,” CNN writes. “Ambiguity was necessary to give the agencies the flexibility to use their technical and scientific expertise to make the countless real-world policy decisions that make up the regulatory foundation of programs that directly affect the health of nearly every American.”
That ambiguity gives judges a tremendous amount of power, and that power now in turn creates a ton of ambiguity in fields that require certainty to function properly.
The mind reels when you stop to think about how much of our daily lives are touched by regulations. From the Affordable Care Act to OSHA to the Environmental Protection Agency and the Consumer Financial Protection Bureau, regulations ensure that virtually every aspect of modern American life runs smoothly. They prevent us from getting sick, they keep us safe on the roads and in the air, and they ensure that our natural resources are conserved for future generations.
The Trickle-Down Court
The Pitch is an economics-minded newsletter, so I’ll try to keep this constrained to economic terms: The Supreme Court is the most ardent proponent of trickle-down economics in the federal government today. By overturning Chevron, the Supreme Court has loosened the bolts that hold America’s regulatory structure together, transferring regulatory power to the CEOs of wealthy corporations who have more than enough money to waste litigating every single regulation that slightly interferes with their profit margins.
It’s not all about Chevron, either. The Supreme Court this year also made it harder for workers to unionize by limiting the National Labor Relations Board’s power to punish big corporations for taking anti-union actions. And they found that while bribing a lawmaker before the passage of a bill is illegal, it’s somehow perfectly legal to give that lawmaker a “gratuity”—yes, that’s the language they used—after the law is passed. And they basically criminalized homelessness in the United States by giving localities the right to make it illegal to sleep on public property, even if they don’t provide enough shelters to temporarily house the unhoused.
We also can’t forget that just two years ago the Court overturned Roe v Wade, effectively stripping women of economic power and agency, and a decade ago an earlier iteration of the Roberts Court narrowly ruled that money is free speech, which opened the floodgates to a new era of dark money from billionaires and corporations in campaign spending.
Zach reminds us often that the three tenets of trickle-down economics are tax cuts for the rich, deregulation for the powerful, and increasing corporate profits at everyone else’s expense. Using those three standards, it’s hard to deny that the majority of Justices on the Supreme Court are solidly under the spell of trickle-down economics, even though a vast and growing body of research proves that trickle-down economics doesn’t work.
How has the Supreme Court become the nation’s leading proponent of trickle-down economics? Why are so many of their rulings in favor of the wealthy few and opposed to working Americans? Today’s court is the end result of a decades-long plan by the archconservative Federalist Society to groom, endorse, and elevate extremely conservative judges throughout the judicial branch. And perhaps because Supreme Court Justices are appointed to the bench for life—also not explicitly stated in the Constitution, by the way—they don’t feel the need to be accountable to the American people. Those life appointments certainly encouraged at least some members of the court to brazenly accept favors from billionaires with business before the court.
By its very definition, the Supreme Court should be advancing laws which benefit the broad majority of Americans, to ensure our security, prosperity, and liberty. But the Roberts court has, at nearly every turn, taken power away from working Americans and handed it over to the powerful. It has enshrined money into the Constitution as free speech, ensuring that billionaires have exponentially more of a voice than you. And it has encouraged widespread corruption on a scale unseen in America since the Gilded Age.
How Do We Fix This?
Ironically, because the Supreme Court is so ambiguously sketched in the Constitution, reforming the institution will take a lot of work. Term limits would require a Constitutional amendment. Leaders like Rep. Alexandria Ocasio-Cortez have called for articles of impeachment against the Court, which might frighten some of the more unabashedly corrupt Justices into humility.
Over the last decade, lots of people have proposed plans to reform the Supreme Court. My favorite plan was laid out by then-presidential candidate Pete Buttigeig in 2019. “In short, it calls for expanding the number of justices from nine to 15, with five affiliated with Democrats, five affiliated with Republicans, and five apolitical justices chosen by the first 10,” wrote NBC News’s Josh Lederman at the time.
One of the best aspects of this plan, to my mind, is that it punctures the lie of the “impartial” judge. No human being is totally objective and absolutely unbiased; the easiest way to address inherent biases is to be honest and transparent about them. I also like that the five “apolitical” Justices voted on by the other 10 partisan judges would “serve one-year, nonrenewable terms,” as Lederman writes. Additionally, “They’d be chosen two years in advance, to prevent nominations based on anticipated court cases, and if the 10 partisan justices couldn’t agree on the final five, the Supreme Court would be deemed to lack a quorum and couldn’t hear cases that term.”
Just speaking from a human perspective, I think the rotating term-limited Justices would also make being on the Supreme Court a little less special, transforming the Court from an elite oligarchy into something attainable for judges who didn’t attend Ivy League schools and who live in ordinary neighborhoods with other working Americans. That proximity to the people is essential—if you’re given a lifetime appointment to live and work in the rarefied air of the Supreme Court, you’re bound to eventually lose touch with the very people the Constitution was written to serve.
The Founders understood that they were composing a flawed document when they wrote the Constitution. That’s why they created the mechanism to amend the document, and why they published it alongside a Bill of Rights ensuring that every single American* had rights that the government could not ignore or trample.
The Supreme Court is now operating in direct contradiction to those rights. It is badly broken, and it’s doing serious damage to the rights of the many, in exchange for even greater rights for the few. We must reform the Court before it causes irreparable damage to the American experiment.
* To be clear: the Constitution, at the time of its writing, absolutely did not ensure that every single American had rights. But we’ve been working on that ever since and we’ve made some remarkable progress in extending those rights to all Americans—particularly in the last half-century or so. That’s the fact that I’m personally focusing on today, in celebration of July 4th. I hope you find some time to celebrate what you love about America today, too, so that you have the strength to return to the hard work of repairing America’s problems in the days and weeks ahead.