Changemaking Decisions by SCOTUS Imperil our Norms, Institutions, and Democracy

Recent decisions by a conservative supermajority US Supreme Court (SCOTUS) have shaken our political and constitutional landscape. As a result, President Biden has proposed reforms to the Court that address presidential immunity, term limits, and an enforceable ethics code. Although some are better known than others, these decisions, if left unchanged, imperil our norms, institutions, and democracy. The highly consequential Trump v. United States decision gives near absolute immunity to the President before and after his/her term, essentially making the President a king. The decision provides Donald Trump ammunition to evade charges of conspiracy to obstruct an official proceeding in his 2020 Election Interference Indictment. To protect our democracy, President Biden has proposed, and Rep. Joseph Morelle has introduced, a constitutional amendment to reverse the Court’s immunity decision to ensure no President is above the law. In addition, Senator Chuck Schumer has introduced the No Kings Act to use congressional power to shrink the Court’s authority to hear certain appeals and to remove the Court’s jurisdiction over current and former presidential and vice-presidential prosecutions. The landmark Dobbs v. Jackson Women’s Health Organization decision, which overturns the 50-year-old Roe v. Wade ruling, removes a woman’s fundamental right to an abortion at the national level and turns it over to individual states to keep, curtail, or ban abortion rights. The Court’s decision has not immediately affected the ability of Nevadans to seek an abortion. However, our state saw a 49% increase in the number of abortions since the overturning of Roe due to an influx of out-of-state residents seeking abortion access. Nevada currently has an abortion ban after 24 weeks of pregnancy, but enshrining abortion rights into our state constitution will be on the ballot this November. Trump has boasted that he is personally responsible for ‘killing’ Roe v. Wade by putting anti-choice justices on the Court. The ruling has greatly jeopardized women’s reproductive healthcare and portends the far-right’s goal of a national abortion ban (Project 2025, pages 449-503).

Although lesser known, other destabilizing decisions could greatly impact our everyday lives and justice system. The far-reaching Loper Bright Enterprises v. Raimondo decision overturned the 40-year-old “Chevron Doctrine”, thereby reducing the power of federal agencies to interpret the laws they administer to protect the environment, public health, and workplace safety. Nevada Senator Jacky Rosen states that this is “…our nation’s highest court giving in to far-right extremists to overturn longstanding precedent to weaken the federal government’s ability to protect families and keep people safe.”

Put plainly and scarily, for example, the US EPA may no longer determine what ‘clean’ water or air is, or regulate greenhouse gas emissions, potentially exacerbating the climate crisis. The Food and Drug Administration (FDA) may no longer determine what ‘safe’ conditions are for our food processing or prescription drugs. The Bureau of Land Management or the US Fish and Wildlife Service may no longer determine protection criteria and policy of threatened or endangered species, like Nevada’s Devils Hole pupfish. Instead, many regulatory determinations will be made by the courts, not by subject-matter experts in these fields. This decision prepares ground for Project 2025’s goal (pages 363-417) to eliminate or drastically gut the EPA, FDA, the National Oceanic and Atmospheric Administration and some other federal agencies. Senator Elizabeth Warren and nine other senators recently introduced the Stop Corporate Capture Act to overturn the ruling to allow agencies to interpret the statues and rules they oversee and to curtail a spate of court cases. The Act is supported by the Physicians for Social Responsibility, the Union of Concerned Scientists, Public Citizen, the Economic Policy Institute, Rise Economy, and the Sierra Club. Synder v. United States allows gratuities to be received by state and local officials after a government job is completed, which widely opens the door to legal bribery. It is currently illegal for a Nevada public officer or employee to take a gift, service, or favor with the intent to influence his/her official duties before or after a performance. Students for Fair Admissions, Inc. (SFFA) v. Harvard and SFFA v. University of North Carolina overruled the landmark 20-year-old, affirmative-action decision in Grutter v. Bollinger, ending race-conscious college admissions. Given neither UNLV nor UNR use race and ethnicity as a factor in admissions, the effects of the Court’s decision within Nevada appear negligible. However, the decision could risk reducing acceptance rates for high-achieving Nevadan students of color at out-of-state elite institutions. Grants Pass v. Johnson forbids actions like ‘occupy[ing] a campsite’ on public property ‘for the purpose of maintaining a temporary place to live’. It makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who camps-out in peaceful protest on the lawn of a municipal building. In Garland v. Cargill, the Court struck down the federal ban on bump stocks, which essentially turn a semiautomatic rifle into a machine gun. The ban, enacted in 2017, was the result of the deadliest mass shooting in US history at a country music festival in Las Vegas by a gunman with a bump stock firing more than a thousand rounds in 11 minutes.

At best these decisions reflect the undoing of years of precedence; at worst they reflect deeply rooted partisanship. So, what can we do to restore faith in a SCOTUS facing judicial illegitimacy? End dark money, the massive anonymous political spending by special interests, or in the least, require full spending transparency of donors. Ending the flood of secret money decreases special-interest pressures on Justices and helps ensure judicial independence.

Term limits (e.g., 18-year one-and-done terms), as proposed by President Biden, perhaps coupled with regularized appointments (e.g., 2 appointments per presidential term), would give every president an equal imprint on the Court during a four-year term, preserve judicial independence, depower individual justices from shaping the direction of the law for generations, and create a greater potential for compromise.

Strengthen judicial recusal rules that reduce concerns of partisanship and facilitate even-handed justice. An enforceable code of ethics, a measure endorsed by Justice Kagan and President Biden, would help Americans trust that justices are ruling based on the law, not politics and personal interest. The luxury gifts and lavish vacations given to Justices Thomas and Alito by far-right megadonors would be prohibited in the High Court Gift Ban Act introduced by Reps. Jamie Raskin and Alecia Ocasio Cortez. The bill caps gifts per instance at $50 and gifts of personal hospitality, which are currently unregulated, at $18K.

Depending on retirements, the next President could appoint two justices. Congressional reforms to SCOTUS that enhance the link between the Court and the people are needed to make the institution more reflective of changing public values and moor it to democratic principles.