The Supreme Court’s crisis of incompetence

All of the United States’ most important governing institutions are failing at once.

Congress, of course, has long been barely able to function. Every year, it struggles merely to fund the rest of the government, and the risk that it will trigger a debt ceiling breach that would set the global economy on fire is alarmingly high.

The Republican Party has atrophied into a cult of personality, centered on an authoritarian who literally tried to overthrow the duly elected United States government. The Democratic Party, meanwhile, may be unable to dislodge a senescent leader who is no longer capable of making the case against his imperious opponent.

And then there’s the Supreme Court, perhaps the only branch of the United States government that is capable of speaking in complete sentences right now. But the most recent Supreme Court term, which ended last week, makes one thing clear: Don’t confuse the Court’s relative eloquence for competence.

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.

Worse, the United States has what might be called a Dunning-Kruger Supreme Court — after the psychological phenomenon where incompetent people fail to recognize their own incompetence.

The justices aren’t just very bad at their jobs; they appear to be blissfully unaware of just how terrible they are at those jobs. How else can one explain, say, their decision to replace all of American Second Amendment law with a novel and impossible-to-apply legal test — one that led to astonishingly depraved results — and then to offer no new guidance to lower court judges, after all but one of the justices realized just how badly they’d screwed up?

The justices surround themselves with the trappings of competency. They have fancy degrees, and they are advised by law clerks with impressive resumes and stratospheric law school GPAs. They write opinions that make proper use of English grammar — something that, admittedly, neither major party’s presidential candidate appears capable of doing. As many as seven of them have not yet been implicated in what, in any other branch of government, would be a career-ending ethics scandal.

But, as the curtain falls on the Supreme Court’s most recent term, no one should think that this particular panel of judges is capable of doing their jobs.

The Court’s inability to create sensible legal rules was on full display in its most closely watched decision of the term: Trump v. United States, the presidential immunity case.

The holding of Trump is truly shocking. One question that loomed over this case is, in the words of a lower court judge who earlier heard the Trump case, whether Trump could be prosecuted if he’d ordered “Seal Team 6 to assassinate a political rival.” Though the Trump opinion does not answer this question directly, it’s hard to read it as permitting such a murderous president to be prosecuted.

For starters, Trump holds “the courts have ‘no power to control [the president’s] discretion’ when he acts pursuant to the powers invested exclusively in him by the Constitution.” One of those powers is the ability to give orders to the military — the Constitution provides that the president “shall be commander in chief of the Army and Navy of the United States.”

As Justice Sonia Sotomayor writes in dissent, “When [the president] uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Elsewhere in the opinion, moreover, the Court concludes that presidents enjoy an extremely strong presumption of immunity to prosecution whenever they perform any of the myriad duties entrusted to the president. Under these circumstances, a president is immune “unless the Government can show that applying a criminal prohibition … would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”

The Court also established that immunity applies even if the president orders the Department of Justice to round up and prosecute all of his political enemies. As Chief Justice John Roberts wrote for the Court, “the Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” and thus a decision to use federal prosecutors for political ends falls within the president’s “conclusive and preclusive” authority.

When I first read the Trump opinion, which was joined only by the Court’s Republican appointees, I saw a blueprint for a dictatorship. I feared that the Republican justices responsible for this decision could not possibly have intended to authorize the president to murder his enemies unless creating such a dictatorship was their intent. But another decision handed down the same day as Trump casts doubt on this hypothesis.

The Court’s decision in Moody v. Netchoice, which was handed down just minutes before the Trump opinion, is as normal as the holding in Trump is aberrational. Briefly, Moody concerned two state laws, enacted by Republicans in Texas and Florida, that attempted to seize control over content moderation at major social media platforms. Writing for herself and five of her colleagues, Democratic Justice Elena Kagan makes it clear that these laws are not acceptable.

Moody stands for the unremarkable proposition that the government may not seize editorial control over the media. Kagan’s opinion was joined by Chief Justice Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, three Republicans who also joined most or all of the Trump majority opinion.

Moody casts serious doubt on the thesis that at least three of the Court’s Republicans intended to pave the road to a MAGA dictatorship. If these justices intended to give Trump the power to kill or arrest his critics, why didn’t they also give Trump’s party the power to control the media — a less disruptive and less violent method of consolidating authoritarian rule?

I don’t know the answer to this question, but I can rule out the possibility that the Republican justices did what they did in Trump because “the law” required them to do so. There is no Presidential Immunity Clause in the Constitution, and what the Constitution does have to say about prosecuting high-ranking officials cuts strongly against the Court’s decision in Trump.

Nor does Roberts’s opinion really even try to make the case that presidential immunity can be found somewhere in the Constitution’s text. Rather, the opinion is grounded in a policy judgment that the president should not be chilled from taking, in Roberts’s words, “bold and unhesitating action” by “the threat of trial, judgment, and imprisonment.”

Nevertheless, the fact remains that the Court just gave presidents the power to kill or arrest their rivals and critics. The Moody decision suggests that the immunity decision was not made to usher in a Trump dictatorship. But that simply means that these Republican justices, whether through blundering or reckless disregard for the risks created by their decisions, unintentionally laid the groundwork for murder and oppression.

Every state’s law permits abortions when necessary to prevent a patient from dying, and even most states with strict abortion bans permit it in at least some cases when a patient’s health is endangered by their pregnancy.

As a practical matter, however, these exceptions to state abortion bans are often worthless. Women have fled to blue states for abortions or been told to wait until they develop truly alarming symptoms because abortion providers are too afraid of being arrested if they perform a medically necessary abortion.

The reason why this is happening is clear. Because Roe v. Wade (1973) deactivated state abortion bans for half a century, state courts did not hear any cases clarifying when it is legal to perform abortions under state law. Indeed, many states enacted new abortion bans during the period when Roe was in effect that suddenly sprung to life when Roe fell, despite no court decisions whatsoever interpreting those laws.

Hospital lawyers, in other words, have no way to advise their clients on when it is legal to perform an abortion and when a doctor who performs one might face years in prison.

This situation is profoundly undemocratic. Every state agrees that abortion should be legal when necessary to save a life, and only about 11 percent of Americans believe abortion should not be legal under these circumstances. And it is rather obviously the Supreme Court’s fault. The Court eliminated Roe, a decision that gave doctors and patients a great deal of clarity about when abortions were legal, without giving any thought to how the law would operate in Roe’s absence.

This term, the Supreme Court was handed a golden opportunity to fix the abortion crisis that it created. Moyle v. United States asked the justices to enforce a federal law, the Emergency Medical Treatment and Labor Act (EMTALA), which requires nearly all hospitals to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives at the hospital’s ER with an “emergency medical condition.”

That includes patients who require an abortion to stabilize their condition because EMTALA contains no exception for abortions.

Had the Court ruled that EMTALA means what it says, that would have done a tremendous amount to clarify when abortions are lawful, even in very red states.

But the Supreme Court didn’t simply refuse to read EMTALA according to its plain text. It refused to decide the Moyle case altogether, kicking it back down to a lower court for what could be months of more litigation. The non-decision in Moyle means that at least another year is likely to pass before women can stop waiting to develop sepsis before they can receive emergency medical care — and that’s assuming the justices don’t create an unwritten abortion exception to EMTALA when the issue reaches them again in the future.

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.

But rather than offer clarity, the Court’s decision in Rahimi is pure gobbledygook. The new rule is that “a court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit,” whatever that means.

Rather than abandoning Bruen’s framework, which failed immediately and in spectacular fashion and which led a wide array of judges to take the unusual step of speaking out against the Supreme Court, the Court babbled about the history of gun laws for a few pages of an unusually short opinion, then left the lower courts to decide the fate of every gun law in the United States with no meaningful guidance whatsoever from the justices.

The Court’s just-completed term also featured one of the biggest power grabs in the Court’s recent history. Loper Bright Enterprises v. Raimondo makes the Supreme Court the final word on hundreds or even thousands of policy questions that Congress delegated to federal agencies like the EPA or the Department of Labor.

These questions concern some big policy disputes, such as who is entitled to overtime pay or how to reduce greenhouse emissions by power plants. But they also concern a much broader array of minor and often very technical questions that few people are likely to care about. The Loper Bright case itself, for example, asked whether the government or the vessels themselves must pay for federal observers who sometimes accompany fishing vessels at sea.

One bizarre thing about Loper Bright is that the Supreme Court already gave itself an unchecked veto power over anything involving what the Court calls a “major question” — that is, agency actions that involve a matter of “vast ‘economic and political significance.’” So the justices were already the final word on policy questions that sparked meaningful political disagreement. All that Loper Bright does is force the courts to decide many more less significant questions.

These are questions like how much residents of Kauai, Hawaii, should pay for cable television service, or whether a wastewater treatment plant in Taunton, Massachusetts, emits too much nitrogen — questions, in other words, that are both far beyond the expertise of the justices and so small they aren’t really worth the time of the nine most powerful officials in the most powerful nation that has ever existed.

Taken in aggregate, federal agencies have thousands or even tens of thousands of employees, many of whom have very specialized expertise and perform the very intensive fact-finding and information-gathering process that any responsible government must perform before it regulates.

The Supreme Court, by contrast, has nine justices, each of whom typically hires four law clerks to assist them. That’s nowhere near enough staff to handle the firehose of hypertechnical policy questions the Court just directed at federal courts, and ultimately at the justices themselves.

The unmanageable volume of cases headed the Court’s way will be further magnified by the Republican justices’ recent decision in Corner Post v. Federal Reserve, which effectively eliminates the six-year statute of limitations that used to apply to lawsuits challenging federal regulations.

Corner Post holds that this six-year clock begins to count not when an agency issues a new rule but when a new business is formed that is subject to that rule. Thus, any company under six years old is allowed to challenge any federal regulation that impacts it, even if that regulation has been on the books for decades.

So, thoughts and prayers to the justices, who will now have to deal with the unmanageable workload they’ve created for themselves, even as they are unable to handle the cases that are already on their docket in a competent manner.

As a young Reagan White House lawyer in the 1980s, future Chief Justice Roberts had a biting wit. “The generally accepted notion that the court can only hear roughly 150 cases each term,” Roberts wrote when he was just beginning his career, “gives the same sense of reassurance as the adjournment of the court in July, when we know that the Constitution is safe for the summer.”

Polls show that most Americans now feel the same way about the Supreme Court, but Roberts’s very good joke is also notable because it describes a Court that hears “roughly 150 cases each term.” This term, by contrast, the Court only decided 59 cases that received a full hearing and oral argument.

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.

So the justices are struggling to keep up on their work, even as that workload shrinks. It’s anyone’s guess how they will handle the expanded workload that is coming their way once lawyers start filing new suits under Loper Bright and Corner Post.

Finally, any evaluation of the Court’s competence must consider Justice Clarence Thomas and Samuel Alito’s loose relationship with judicial ethics.

Most government officials are subject to strict limits on their ability to accept gifts. Members of Congress and their staff, for example, are typically forbidden from accepting any gift valued at more than $50. Thomas, by contrast, has accepted millions of dollars worth of gifts from Republican-aligned billionaires. And Alito accepted a $100,000 private jet ride from Republican billionaire Paul Singer, before staying in a $1,000-a-day fishing lodge and reportedly drinking wine that costs over $1,000 a bottle.

Yet, after months of embarrassing news stories examining Thomas’s and Alito’s corruption, the Court responded with a toothless, largely unenforceable ethics code that does nothing to limit the justices’ ability to take similar gifts in the future.

Indeed, the primary effect of this ethics code appears to be giving the justices something they can cite to justify their ethical lapses. After Alito came under fire for flying flags conveying right-wing political messages outside of his two homes (Alito blames the flags on his wife), he cited the new ethics code — and specifically its statement that a justice is “presumed impartial” — to justify taking no corrective action.

These justices, moreover, continue to sit on corruption cases despite their own corruption. In Snyder v. United States, for example, they joined a majority opinion ruling in favor of an Indiana mayor who accepted a $13,000 gift from a trucking company, after the mayor’s city entered into a $1.1 million contract with that company.

So, the current Court is unable to write a coherent legal standard. It removes essential safeguards against tyranny and dictatorship. It can barely handle a shrinking caseload, yet appears determined to flood itself with some of the most difficult and low-stakes policy questions that come before the federal government. And it can’t even follow the most basic norms establishing that government officials should not be on the take.

We live in an age of babbling and incoherent leaders. The Supreme Court is no exception.