Undoing Democracy

This Supreme Court Term Was All About Undoing Democracy

The justices made racist gerrymandering easier—and that’s just the start.

PEMA LEVY

In the coming weeks, the Supreme Court will wrap up a consequential term and issue decisions that are expected to undercut bedrock assumptions about each branch of government and create a new balance of powers—one that tips the scales toward an unassailable executive and an all-powerful judiciary. It began on Thursday, as the court gave states new leeway to discriminate against minority voters. The justices may soon add women’s right to healthcare to the list of privileges that a state may deprive its citizens, another step that would turn the clock back to a time when the Constitution viewed states rights as more sacrosanct than the rights of its people. Though the cases at issue address many different issues, a theme punctuating them all is that the Republican-appointed majority appears willing to do serious damage to American democracy. 

Two years ago, Americans enjoyed a fundamental right to an abortion. With that right since demolished, last month during oral arguments in a case involving an Idaho abortion ban, several justices contemplated whether states can deprive women not just of elective abortions, but ones necessary to spare their uteruses, kidneys, and even their lives. It was a stunning and rapid reversal of fortune for women in this country—and one that cannot be squared with a healthy democracy. 

“There’s an exceptionalism in terms of democracy, women, [and the] law in these reproductive cases,” says Georgetown Law professor Michele Goodwin, who argues the case, along with the 2022 Dobbs ruling overturning Roe v. Wade, ignores “the constitutional citizenship and personhood of women.”

The court’s conservative majority is set to do serious damage to American democracy. 

In the decision he wrote that ended the right to an abortion, Justice Samuel Alito placed the state’s interest in protecting an embryo or fetus over a pregnant person’s bodily autonomy. Now, in Moyle v. United States, Idaho asks the justices to place the same state interest over the federal government’s interest in ensuring that everyone receives emergency medical care. At issue is whether the Emergency Medical Treatment and Labor Act (EMTALA), an almost 40-year-old law mandating hospitals that receive Medicare funding provide stabilizing treatment in emergencies, preempts Idaho’s abortion ban, which forbids abortion except to save the life of the mother. Put simply, does a state’s right to ban abortion override the federal government’s interest in ensuring women’s safety? 

Idaho argued that it should have the final say on its citizens’ health and safety. When Justice Elena Kagan asked the attorney for Idaho, Joshua Turner, whether a state could ban abortion even when “death [for the mother] is around the corner,” Turner said it could. “That understanding is a humble one with respect to the federalism role of states as the primary care providers for their citizens, not the federal government,” Turner responded. To which Kagan replied, “It may be too humble for women’s health, you know?”

It’s a shocking argument. It carves pregnant people out of medical protections guaranteed to everyone else, while more broadly allowing a state to inflict violence—up to and including death—upon its citizens. It assigns more dignity to states than to their citizens. And yet, if oral arguments are any indication, it seemed a majority of the justices were ready to usher in such a future. 

The case also indicates that the conservative justices appear ready to rewrite basic legal principles in order to achieve a certain outcome. Under longstanding constitutional precedent, their decision in the Idaho case should be simple: when federal law conflicts with state law, federal law wins. 

The 14th Amendment, enacted after the Civil War, transformed the relationship between the federal government and the states—a fact all the justices invoke when it suits them. “The whole point of the Fourteenth Amendment was to restrict state power, right?” Chief Justice John Roberts asked in February, when the court heard oral arguments in a case over whether the 14th Amendment permitted Colorado to remove Trump from the ballot on the grounds that he is an insurrectionist.

Roberts was right. But its purpose went further. As David Gans, a constitutional law expert at the liberal Constitutional Accountability Center, wrote in the Atlantic in 2021, the framers of the 14th Amendment contemplated the fact that freedom included the right to marry and create a family according to one’s wishes—a juxtaposition to the culture of rape and family separation that defined slavery in America. 

GOP-appointed justices are ready to rewrite longstanding rules to achieve their desired outcomes.

These rights are an extension of bodily autonomy, which was explicitly discussed when Congress drafted the 14th Amendment. “During the debates, members of Congress insisted that a person’s ‘uninterrupted enjoyment of his life, his limbs, his body, his health’ was a bedrock right guaranteed to all,” Gans wrote. “Without bodily integrity, the Fourteenth Amendment’s promise of equal citizenship would be illusory.”

EMTALA was not enacted under the authority of the 14th Amendment, but the case implicates its key themes, and the way that the court is shrinking its application while refusing to apply it to women’s and minority rights. In Dobbs, the conservative majority denied that abortion rights had any basis in the Constitution, history, or traditions of the United States. If they let Idaho override federal law, they will be making clear they do not see the federal government’s power to protect its citizens in it either. 

The EMTALA case is shocking both because it again denies this view of liberty to pregnant people, and because it asks the justices to disregard the federal government’s interest in protecting their life, limbs, body, and health.

On the term’s last day of arguments, the court heard Trump’s claim to absolute immunity for official acts he made as president. Just as in the EMTALA case, which was heard the day before, most of the GOP-appointed justices appeared ready to rewrite longstanding rules to achieve their desired outcome.

Limiting the ability to prosecute presidents for wrongdoing in official acts would move the office from a position that operates under the rule of law to one that operates above it. While the GOP-appointed justices are technically correct that the Constitution does not mention abortion, it certainly does not mention presidential immunity. The founders, who had just made a radical break from monarchy through a revolutionary war, expressly rejected the notion.

“Key participants in the ratification debates expressly emphasized that the President would remain subject to criminal prosecution, and that check was important to the ratifiers’ understanding of the constitutional order they were approving,” scholars of the era wrote in an amicus brief in this case. 

But when it came to the immunity question, at oral arguments the court’s originalists became consequentialists. What should the court do, they wondered, to stop prosecutors from going after ex-presidents? “I’m not concerned about this case so much as future ones,” Neil Gorsuch claimed. “I’m very concerned about the future,” Brett Kavanaugh declared, while admitting that immunity is not stated in the Constitution but might be read into it implicitly. “This case will have effects that go far beyond this particular prosecution,” Samuel Alito said when the government’s attorney tried to discuss the facts at hand. 

A country with a commander-in-chief who is not beholden to the law is not in fact a democracy anymore.

While exploring what new immunities they might extend presidents, the justices on the courts’ rightmost flank painted a grim picture of American democracy, besieged by vengeful presidents and rogue prosecutors who bring bogus cases to sully their opponents retirements. This vision was completely ahistorical—it’s a feverish fear, not a reality. Yet several of the GOP appointees found the hypothetical scenario to be a credible, imminent threat to the republic.

The only plausible reason to be on such high alert is the assumption that that future has already arrived, to be red-pilled enough to believe that the criminal indictments against Trump are, as Trump claims, a political vendetta, that our democracy has already tipped toward authoritarianism, and that the only way to save it is to remove more guardrails. In that worldview, democracy is not being sacrificed to a lawless president, but preserved by the creation of an immune executive. Justice Samuel Alito even floated the idea that presidents might try to stay in power illegally in order to protect themselves from a vengeful successor—a bizarre hypothetical that makes more sense now that we know that after the 2020 election the Alito residence flew an upside-down flag, a sign of support for Trump’s insurrection.

But a country with a commander-in-chief who is not beholden to the law is not in fact a democracy anymore. It fell to Sonia Sotomayor to make this point. “A stable democratic society needs the good faith of its public officials, correct?” she asked. “And that good faith assumes they follow the law?” 

It’s unlikely that the justices will give Trump the sweeping immunity he seeks. But what might be dubbed a compromise by the press—a ruling that allows some immunity for official acts, for example—would elevate the presidency above the law in certain situations, upsetting the system of checks and balances that undergird our system of government. In order to protect Trump, they are abandoning not just their professed originalism, but adherence to the foundational idea of an accountable executive, despite the embarrassing irony that Trump has promised to use the DOJ to attack his political enemies—the very behavior that the GOP-appointed justices claim to be worried about. When choosing between democracy and Trump, a majority of the justices look to be seriously considering picking Trump. 

Lest that seem extreme, the Democratic-appointed justices have already issued a public warning this term that the majority is looking out for Trump’s interests. When the court ruled that Colorado could not exclude Trump from the ballot under the 14th Amendment’s insurrectionist ban, the minority’s dissent explained how the decision went out of its way to create a process for enforcing the prohibition that protects Trump and his allies.

A vital element of democratic self-preservation is that someone who tried to overturn that democracy not then take charge of it. But, as Kagan, Sotomayor, and Ketanji Brown Jackson wrote in their March dissent, “The majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office” and “goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.” 

The court’s anti-democratic activity this term will likely include a judicial power grab that will undermine Congress’ authority and the functioning of the federal government. In January, the Supreme Court heard a pair of cases that could hand significant new powers to lower federal courts and—ultimately—to the justices themselves. At issue is so-called Chevron Deference, named for the unanimous 1984 decision Chevron v. Natural Resources Defense Council, which stipulates that when a statute is ambiguous, courts defer to an agency’s reasonable interpretation. Staffed with experts and civil servants, the principle behind Chevron is that agencies are best situated to make tough calls in thousands of regulatory decisions every year. 

When choosing between democracy and Trump, a majority of the justices look to be seriously considering picking Trump. 

Chevron has been a target of the right for several years because it enables regulations, such as environmental protections under the Clean Air Act, that industry wants to block. Gorsuch and Kavanaugh both broadcasted their opposition to Chevron while auditioning for their Supreme Court seats, and after oral arguments, there’s little doubt that the doctrine will either be overruled or significantly whittled down. While the effects on Americans’ daily lives—from the air they breathe to the parks they play in, the food they eat and the medicine they take—will be significant, losing Chevron will also be a serious blow to American democracy.

A decision handcuffing the administrative state would come on top of another bold judicial power grab already underway: a method of legal interpretation dubbed the “major questions doctrine,” by which the justices have decided they can invalidate agency rules if they deem them too politically significant or expensive to leave up to an agency. When the court’s GOP-appointed majority first officially invoked the novel doctrine in 2022 to overrule an Environmental Protection Agency rule addressing climate change, Kagan called out the political expediency behind the move in her dissent. When the majority’s preferred method of judicial interpretation fails to achieve their goals, she wrote, “special canons like the ‘major questions doctrine’ magically appear as get out-of-text-free cards.” In 2023, the justices relied on the doctrine to put themselves in charge of major policy areas, including by striking down President Joe Biden’s student loan forgiveness plan as too major for the Department of Education to carry out. 

Without Chevron, executive branch agencies would be hobbled in creating thousands of rules and regulations that protect Americans. Instead of agencies and experts having the final say, it would fall to the courts to decide what the law should be, whether regulating drug safety, Medicare and Medicaid, or nuclear waste. Not only are rules considered too significant now available for judicial veto, so too would any that arise from an ambiguous or broad statute. 

After oral arguments, University of Pennsylvania law professor Kate Shaw worried that the decision in the case “could be just a nightmarishly judicial supremacist opinion” that invests the courts with unprecedented powers. “It’s going to be seismic if they do the maximalist version of this opinion,” she said on the podcast she co-hosts, Strict Scrutiny.

The end of Chevron would not just shift power from agencies (and the presidents who direct them) to the courts, it would also significantly disempower Congress. Congress writes statutes that are purposefully broad and vague because it knows that it cannot predict every application of the law and thus delegates to the agencies the responsibility to carry out the law as new challenges arise. Likewise, Congress knows that scientists, doctors, and other agency experts are better suited than lawmakers to make certain regulatory decisions. Congress is perhaps the most democratically-accountable branch of government; and agencies, while unelected, are led by chiefs who are picked by the president and confirmed by the Senate. Administrative rule-making includes a comment process that is open to the public. Judges, conversely, enjoy lifetime appointments unless impeached for serious misconduct. A shift in power toward the judiciary is a shift away from democratic accountability.

Further, by removing Chevron, the justices would essentially be forcing Congress to change how they write statutes to court-proof the ways they empower agencies. “We expect Congress to have a fair bit of leeway that allows it to do its job and to legislate in a way that best reflects the will of the people,” says Miriam Becker-Cohen, an attorney at the Constitutional Accountability Center, a liberal legal organization. “If you have judges, who are not part of the legislative branch, coming in and dictating the way in which Congress has to write statutes, that undermines democratic values.”

A shift in power toward the judiciary is a shift away from accountability.

But disempowering the elected branches of government is the point. Republicans have lost the popular vote in seven of the last eight presidential elections, but in his four years, Trump was able to reshape much of the federal judiciary. Judges can be a route to minority rule, and ending deference to agencies would allow the conservative movement to wipe out the policies of administrations it doesn’t agree with. Conservatives “are looking to the judiciary vis-a-vis their power, or lack thereof, in the other branches,” says Becker-Cohen. “It’s not just that overruling Chevron would transfer power to judges: it’s that that is specifically the goal.”

Perhaps no issue is as central to democracy as voting. Over the past decade, the Supreme Court has chipped away at the ability to challenge unfair maps and racially-discriminatory voting practices, both under the Voting Rights Act and the Constitution. On Thursday, the Republican-appointed majority took another significant step that will limit challenges to racially-discriminatory gerrymanders.

In 2021, the South Carolina state legislature sought to shore up Republicans’ hold on the 1st Congressional District by drawing more than 30,000 Black voters out of it. A three-judge district court panel found that was an unconstitutional racial gerrymander.

In its decision Thursday overturning the district court’s order, the Supreme Court departed from precedent and usual judicial methods, as Kagan wrote in her dissent, by placing “uncommon burdens on gerrymandered plaintiffs.” While the decision confirmed that racial gerrymandering is technically unconstitutional, successfully proving it occurs in court will be nearly impossible. The decision is an invitation to lawmakers around the country to disempower Black and brown voters, an outcome at odds with equal voting rights for all.

In 2019, in one of the court’s landmark rulings weakening voting rights, Chief Justice John Roberts held that partisan gerrymandering was beyond the purview of federal courts. Although Roberts was clear that racial gerrymandering was still justiciable, his opinion threatened to swallow those claims as well because race and political affiliation are often closely correlated. 

On Thursday, that’s exactly what happened. Because partisan gerrymandering is allowed, all South Carolina had to do, according to the conservative supermajority, was to claim that politics motivated its map-drawing. Further, Alito wrote in his 6-3 majority opinion, district courts must view such claims with a “presumption that the legislature acted in good faith.” The Supreme Court’s decision creates a black hole that will now suck in virtually all gerrymandering claims. Though the justices have spent the last several years attempting to end government uses of race—even when the purpose is to increase racial equality—racial gerrymandering is now one area in which the justices invite racial discrimination, and promise that lawmakers will almost always get away with it.

These four cases, taken together, strike at the heart of American democracy. They threaten to institute a topsy-turvy Constitution in which its post-Civil War amendments protect an insurrectionist but allow states to dismantle the rights of women and minorities, while the president grows more king-like and judges snatch critical decisions from the elected branches. It doesn’t resemble what the framers intended—nor is it the basis for a democratic future.