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The incompetent imperialism of the Roberts Court


One argument you hear from the dwindling number of non-reactionary apologists for the Supreme Court is that you have to live with its many awful decisions because of its critical role in resolving more obscure legal questions. But while it’s not the biggest problem with the Court, one upshot of its focus on being the Republican Party’s executive committee on high-profile policy questions is that it’s more or less stopped performing its other judicial functions:

The justices are barely able to manage their own docket, even though it’s been shrinking for decades. They publish incompetently drafted decisions that sow confusion throughout the judiciary, then refuse to accept responsibility when those decisions lead to ridiculous and immoral outcomes. They take liberties with the facts of their cases, and they can’t even be trusted to read the plain text of an unambiguous statute correctly. In just the last few years, they’ve overruled so many seminal precedents that law professors no longer know how to teach their classes.

If the justices did not wield such awesome power, and if lawyers who practice before them did not have to treat them with ritualized obsequiousness, most of the justices would be laughingstocks. Few people this famous are so ostentatiously bad at their jobs.

And yet, despite their incompetence, the justices continue to claim more and more power — even though they simply do not have the personnel or expertise needed to address every policy question they’ve added to their own plates.

I used to believe that Trump and his followers and the Federalist Society, the conservative legal group that played an enormous role in choosing his judges, were two distinct authoritarian movements that shared power during Trump’s four years in office. The MAGA movement is a cult of personality that seeks to elevate a singularly chaotic man. The Federalist Society and its allies prefer a distinctly lawful tyranny that still follows predictable rules.

But then the Federalist Society’s picks took over the Supreme Court. And they have behaved so haphazardly, with such eagerness to smash institutions built over decades or even centuries, that it’s hard to see them as anything other than Donald Trump with a law degree. Unlike Trump, the Court’s Republican majority speaks in polished legal prose when they decide to hurl decades worth of settled expectations into the sun. But their behavior on the bench is no less chaotic than that of the insurrectionist president who appointed half of them.


As lawyer and political scientist Adam Feldman has documented, the size of the Court’s workload has been in steady decline since the 1960s

For anyone who wants a deep dive into why this is happening, I wrote about it here. For now, I’ll simply note that the Court’s shrinking docket has come largely at the expense of the kind of boring, relatively low-stakes legal disputes that the Court used to decide on a regular basis. The Court’s political docket, cases involving contentious issues that tend to split the two political parties, has not shrunk at all.

The Supreme Court, in other words, no longer really functions as a court. It spends less and less time deciding bread and butter legal issues that should be the core work of judges, and more and more time resolving political questions that often should be decided by people who hold elected office.

Yet, despite its ever-shrinking workload, the current slate of justices appear barely able to keep on top of their jobs. As the New York Times’s Adam Liptak wrote in mid-June, “The Supreme Court has been moving at a sluggish pace in issuing decisions this term, entering the second half of June with more than 20 left to go.” That’s a significant slowdown from the Court’s historic pace. This was also a rare term when the Court did not finish handing down decisions by the end of June.

And needless to say, the inability of nine judges with four full-time clerks of their choice to resolve 60 or 70 cases a year in a timely manner isn’t because they take the time to ensure that their holdings and opinions are carefully and precisely crafted:

A similar drama played out in United States v. Rahimi, a case where a federal appeals court concluded that a remarkably violent man, who allegedly committed six different shooting crimes and threatened to kill two women, has a Second Amendment right to own a gun.

To their credit, eight of the nine justices agreed that allowing this man to be armed is unacceptable. But their decision in Rahimi did little to clarify a 2022 Supreme Court decision which seemed to compel lower courts to rule that even this exceptionally violent individual gets to own a gun.

New York State Rifle & Pistol Association v. Bruen (2022) held that all gun laws are unconstitutional unless the government can “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” A modern-day gun law is particularly suspect under Bruen, moreover, if it addresses “a general societal problem that has persisted since the 18th century.”

The lower court that heard Rahimi struck down a federal law that disarms people who are subject to domestic violence restraining orders. But the worst part about this lower court’s decision is that it was correctly decided, at least if you take Bruen seriously. Violence between romantic partners, after all, existed in the 18th century. But there were hardly any laws addressing it, and no state made it a crime for married partners to beat their spouse until 1871.

And while Bruen compelled the immoral result reached by the lower court in Rahimi, its vague “historical tradition” test has baffled judges across the political spectrum, few of whom are trained as historians. Justice Ketanji Brown Jackson’s concurring opinion in Rahimi cited a dozen lower court opinions, all begging the Supreme Court to tell them how, exactly, Bruen is supposed to work.

The Court’s refusal to apply Bruen in good faith in Rahimi is better than the alternative, but the fiasco the first opinion created hangs squarely on Roberts — not only assigning Thomas the opinion but signing on when he filed what should have been one of his trademark kooky solo or Alito-joined kooky concurrences as a (transparently unworkable) opinion of the Court. Of course, for Roberts “this extremely broad opinion applies except when the result shocks my personal conscience” is more a feature than a bug. This is a Court consumed by wildly out of control arrogance as well a partisanship, and the rot starts at the top.

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