This year, the U.S. Supreme Court term once again concluded with several major cases that undermine Congress, unduly empower the presidency, and leave the American people exposed to abuses by government and corporate special interests. Though certain decisions did not go as far as democracy advocates feared, the court continued its trend of undermining American rights and freedoms. In Louisiana v. Callais, it struck a powerful blow to Section 2 of the Voting Rights Act (VRA). And in Trump v. Slaughter, it overturned an almost 100-year-old precedent, fundamentally changing how independent agencies work and putting unprecedented power in the president’s hands.
These decisions and more are discussed in greater detail below, highlighting how, on our nation’s 250th birthday, the Supreme Court is working to undermine the very constitutional principles that make this the United States of America.
Undermining voting rights and election integrity
This term, the Supreme Court decided to drastically weaken Section 2 of the VRA in Louisiana v. Callais, having already gutted Section 5 in 2013’s Shelby County v. Holder. This decision makes it nearly impossible to challenge racially discriminatory voting districts, supercharging mid-decade political gerrymandering—which the court greenlit in Rucho v. Common Cause—in several states that have now eliminated multiple majority-minority congressional districts. The court also declined to hear a case that held that disabled people do not have a private cause of action to sue to overturn state laws hindering their ability to get help voting under Section 208 of the VRA. The Callais decision could also have massive impacts on the way antidiscrimination laws are used to protect people from all walks of life, but especially people of color, throughout the nation.
Not content to merely spark the nationwide gerrymandering wars—in blatant violation of the court’s own Purcell principle, which dictates that courts should not interfere in election-related cases close to elections—Chief Justice John Roberts’ court went much further. In National Republican Senatorial Committee v. Federal Elections Commission (FEC), it overturned a case from just 25 years ago that held political parties coordinating electoral spending with individual campaigns resulted in an appearance of corruption. Justice Elena Kagan’s dissent noted, “[T]he Court ushers back in the same opportunities for quid pro quo corruption that the contribution limits were meant to check.” This comes just a few years after the court held in FEC v. Cruz that individuals could help candidates pay down their debts after they are elected, even though this appears even more calculated to curry influence with elected officials
While the court upheld the ability of states to count ballots mailed by, but received after, election day in Watson v. NRC, the decision was 5-4. Such a narrow decision at the Roberts court tends to be viewed not as a loss but as an invitation to try again. A prime example is that these very same justices upheld Section 2 of the VRA in 2023’s Allen v. Milligan only to turn and strike it down in Callais just three years later. This is by no means the end of other efforts to undermine free and fair elections that may crop up before the court again soon.
Expanding presidential power
In recent terms, the Roberts court has amplified the unitary executive theory, giving the president powers that exceed even those of the British king before the American Revolution, in flagrant disregard of centuries of separation-of-powers principles. This term, the court held in Trump v. Slaughter that Congress has no authority to place statutory limits on the president’s ability to unilaterally remove people serving on bipartisan multimember boards or commissions for any reason. Congress first created and provided removal protections for an independent multimember board in 1887—the Interstate Commerce Commission—and the Supreme Court unanimously affirmed that they were constitutional in Humphrey’s Executor 91 years ago. Since then, Congress created a number of “independent agencies,” such as the Federal Election Commission, Federal Trade Commission, National Labor Relations Commission, Federal Communications Commission, and Consumer Product Safety Commission. These agencies have been intentionally bipartisan to avoid political capture and fulfill their congressionally directed duties, regardless of who was president.
Now, those protections are gone and a president can remove anyone with whom he disagrees for any reason, stripping Congress of its statutory powers and undermining Americans’ safety and interests. The minor saving grace is that the high court did not allow the president to remake the Board of the Federal Reserve in his own image in Trump v. Cook. However, that litigation has not ended, and the president is merely prevented from firing Federal Reserve Board governors without process, with the matter of cause yet to be decided.
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Weakening the rights of immigrants
In Trump v. Barbara, the Roberts court, in a 6-3 decision, pushed back on the most unconstitutional and antidemocratic presidential action in recent history: attempting to overturn the Constitution’s guarantee of birthright citizenship via executive order. On the first day of his second term in office, President Donald Trump unilaterally declared that birthright citizenship did not apply to people born in the United States whose parents were not lawful citizens. This was completely at odds with the 14th Amendment, which unequivocally states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” It was also at odds with the Supreme Court’s own precedent in 1898’s United States v. Wong Kim Ark. Despite it being a 6-3 decision, four justices—Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch—opined in dissent that President Trump’s executive order was entirely constitutional. This is not the end of the battle to ensure that birthright citizenship remains the law of the land, as President Trump has already called on Congress to eliminate the constitutional right by statute, in line with the reasoning of the dissenting justices.
Unfortunately, Barbara was the only favorable ruling for immigrants this term. In Urias-Orellana v. Bondi, the Supreme Court unanimously decided to make it more difficult for asylum-seekers to challenge status denials by immigration judges, holding that, to do so, “the evidence presented was ‘so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.’”
Meanwhile, in Mullin v. Doe, the far-right justices held that the U.S. Department of Homeland Security can terminate Temporary Protected Status (TPS) for people legally residing in the United States—many with U.S.-citizen children—who fled their country due to war, civil upheaval, or natural disaster without abiding by congressionally mandated procedures. As a result, hundreds of thousands of Haitians and Syrians who have lived in the United States and lawfully contributed to their communities for years, if not decades, could be summarily returned to their countries. Notably, the U.S. State Department has “Level 4: Do not travel” advisories for Haiti and Syria due to risks related to crime, terrorism, kidnapping, hostage-taking, unrest, and armed conflict.
In addition to allowing the immediate removal of TPS recipients, Mullin v. Doe also held that there is no judicial review of—and thus no cause of action to challenge—a DHS decision terminating TPS protections. Effectively, this means that DHS does not have to follow the law in certain decision-making processes because affected immigrants cannot sue to protect themselves.
Limiting lawsuits against powerful entities
In Monsanto v. Durnell, the court held that individuals cannot sue corporations that fail to put warnings on their products—in this case, Roundup weed killer—disclosing that they may cause cancer under state failure to disclose laws because federal law preempts state law. As a result, thousands of lawsuits brought by people who allege they have been harmed using Roundup could likely be dismissed.
Meanwhile, in Landor v. Louisiana Department of Corrections, the court eliminated a cause of action allowing prisoners whose constitutional rights have been violated to sue the individuals who harmed them unless those individuals consent to being sued under the Constitution’s spending clause. In this case, a practicing Rastafarian who was three weeks from release from prison showed guards a 5th Circuit decision prohibiting prisons from shaving people’s dreadlocks on religious grounds; but the guards threw away the paper and did it anyway. The far-right justices held that the requirement to “ensure that state and local prisons respect prisoners’ right to religious exercise” did not give him, or anyone, the right to individually sue the people who violated his rights.
Under their spending clause analysis, there is significant concern that this ruling will be extended to eliminate private causes of action for anyone who has been harmed by state officials working under a spending clause-authorized law. This implies that individuals whose rights were violated by state actors through the Individuals with Disabilities Education Act, were denied mandated Medicaid benefits, or had their civil rights violated through race or sex discrimination may not have a private right of action to sue for damages against the people who harmed them unless they have affirmatively consented to be sued. Such a decision significantly undermines Congress’ ability to protect not only individual Americans from public harms and constitutional violations but also their right to be protected from illegal or unconstitutional government action.
Conclusion: The need for court reform
This Supreme Court has affirmed time and again that it is a friend to powerful special interests and a foe to the people and American democracy. While Congress could act to reverse some of the court’s misguided rulings, the constraints being put on the legislature by this Supreme Court make it increasingly hard to do so. This court has made it harder for Congress to enact laws ensuring that every American’s vote is counted and that they are not discriminated against. It has eliminated the possibility that Congress can constrain an out-of-control or lawbreaking president with anything other than impeachment. It has made it incredibly difficult to enforce public corruption and bribery laws against individuals at the highest level of government. It has increasingly narrowed the ways that Congress has affirmatively and passively allowed Americans to sue the government and powerful special interests to stand up for their rights. And even if Congress were able to remedy some of these wrongs through specific and exacting legislation, this Supreme Court could simply manufacture new ways to strike down the will of American voters.
It has become glaringly clear that not only should Congress attempt pass legislation to fix the erroneous decisions this court has handed down, but it must also reform the Supreme Court itself.
It has become glaringly clear that not only should Congress attempt pass legislation to fix the erroneous decisions this court has handed down, but it must also reform the Supreme Court itself. This can begin with 18-year term limits, an enforceable code of ethics, and stronger requirements on transparency. But it must go further: Congress must enact laws that make judge shopping impossible and forum shopping more difficult to prevent litigants from handpicking their judges. It must severely limit the ways in which the interim emergency, or “shadow,” docket is used by the court, so that major decisions affecting the nation are not made on minimal briefing before any of the facts have been considered by lower courts—and without publicly available reasoning. It should create a Supreme Court Review Act allowing Congress to remedy decisions on an expedited basis. And most importantly, it should consider disempowering legislation, removing jurisdiction from the high court to hear certain cases, to prevent its judicial activism from undermining Americans’ democratic will.
None of these solutions are easy or a silver-bullet fix, but they are necessary to wrest back control from a Supreme Court that has seemingly become unbound from ethics and is advancing a politically tainted agenda beyond what the framers could have ever imagined.