Chris Geidner on SCOTUS's legitimacy crisis
The "Law Dork" author explains why you should be very afraid of what the court is up to this term.
The Supreme Court just started a new term, but people are still reeling from the last one. It saw the court overturn Roe v. Wade, expand Second Amendment rights, hobble the EPA’s ability to fight climate change, and more.
This term is also shaping up to be a doozy. SCOTUS will be deciding cases that could have profound impacts on democracy, including one that could further chip away at the Voting Rights Act. Another case could give Republican-controlled state legislatures unchecked power over elections. There’s a case that involves whether web designers can refuse to produce websites for same-sex marriages, another that could gut the Clean Water Act. And there’s not much reason to hope that any of this will turn out well.
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Considering the ultra-conservative nature of this Supreme Court — with Justices Alito, Gorsuch, Kavanaugh, Thomas, and Barrett serving as a reliable majority for GOP causes — it’s likely that most of the important cases the court will soon decide will push the country to the right.
To unpack the court’s new term and what it portends for America, I spoke to Chris Geidner. Geidner is a longtime Supreme Court reporter who writes and publishes the Law Dork newsletter, which you should definitely check out for all things SCOTUS.
A transcript of our conversation, lightly edited for clarity, follows.
What do people need to know about the direction of SCOTUS?
The problem is we used to have this thing called precedent, and specifically with the court something called stare decisis, that led justices to adhere to their past decisions. That sort of slows down what the court can do. It makes it so they are more methodical. You gradually adjust precedent. You slightly change things. It took a special situation to reverse a past decision of the Supreme Court.
The entire approach to Dobbs [the case that overturned Roe] last term made it clear that the answer now is if you have five votes, you can overturn precedent. You don’t even need the chief justice.
The court is hearing a case about if Republicans in Alabama can draw up a congressional map that puts most black voters in a single district. What’s the backstory there?
That case, Merrill, is about Section 2 of the Voting Rights Act. It has to do with vote dilution. It has to do with whether or not, in this case, a state with 27 percent Black residents, Alabama, would only get one district that was majority minority. That area of the state, which is referred to as the Black Belt, was split into a bunch of different districts so that they would probably not be able to elect a second Black member of Congress.
A federal court heard the case, and they found that Alabama had violated Section 2, but the Supreme Court — Justices Thomas and Alito and the three Trump appointees — basically said they’re going to put the lower court ruling on hold for now. [Chief Justice Roberts has long been critical of the Voting Rights Act and Section 2 specifically, which prevents states from denying people the right to vote based on their race, but in this instance didn’t vote with the conservative majority.]
In other words, Chief Justice Roberts in disagreeing with the majority basically said that under current precedent, what the lower court decided was right — that under current precedent the map violates the law. Nonetheless, the other five said they’re going to put that ruling on hold until they decide this case, so for the midterms, even under the current law, maps that have been found to be illegal are being used to elect members of Congress in Alabama.
Another case has to do with how much power state legislatures have over elections. Essentially, they’re trying to eliminate the ability of state courts or the governor of a state to challenge voting laws created by a state legislature, right?
That case hinges on the independent state legislature theory — I don’t like calling it a doctrine because it’s not.
It’s really wild. What the independent state legislature theory posits is that state legislatures have the sole authority for making decisions about election laws. They’re not reviewable by state courts. State governors don’t have a say, so you couldn’t have a veto.
Most importantly for this case is that state courts wouldn’t have a say. This would really cut one of the few remaining pieces out of the process that holds state legislatures accountable for redistricting decisions.
On the federal side, we’ve gotten rid of preclearance [which required southern states to get DOJ approval to change voting laws], we’ve gotten rid of partisan gerrymandering claims, we’ve chipped away at lots of Section 2 claims. Now we’re looking at chipping away or eliminating vote dilution claims under Section 2. All of those are ways of challenging redistricting decisions in federal courts, and now if this independent state legislature theory is adopted by the court, we’d basically be out of opportunities to challenge federal redistricting decisions even in state courts.
There would basically be no way in state or federal court to challenge these decisions, even when they clearly violate the law or the constitution.
Other major cases this term involve things like possibly gutting the Clean Water Act and empowering discrimination against LGBTQ people. Should we just assume all of these cases are going to turn out badly for people on the left?
It doesn’t look good. The bottom line is the Supreme Court doesn’t really have power outside of its perceived legitimacy, and that’s the reason why we’re seeing a lot of these conservative justices giving more aggressive statements about how disagreeing with their decisions doesn’t mean you should discount their legitimacy. They’re starting to feel the fire.
One of the really important things that we haven’t seen a lot of in recent years, and it sounds like we’re going to be seeing a lot of it from Justice Jackson, is passion on the court. We’ve started to think of Justice Sotomayor as being pretty aggressive, and she certainly is, and there have been times when Justice Kagan has gone out on a limb. But what we’ve seen from arguments so far this term is that Justice Jackson is really ready to hold this court accountable for its actions.
The approval rating for the Supreme Court is really bad — a recent poll found it matching a record low of 40 percent — and there are questions about its legitimacy. Do you think justices are concerned that at some time in the future their decisions could be disregarded?
Yes. Andrew Jackson said, “John Marshall has made his decision, now let him enforce it.” There is a very real question of what happens when the court’s decisions are not treated as legitimate. I think we’re getting dangerously close to that.
That’s it for today
We’ll be back with more Wednesday.