To donate by check, phone, or other method, see our More Ways to Give page.
In this world, where everything and everyone is for sale, we must sustain independent media we can trust. If you believe independent journalism is critical to protecting democracy and the common good, please support Common Dreams this Giving Tuesday! We wouldn't exist without you.
Call me naïve. At the beginning of this year, I felt confident in asserting that the court was a conservative court, a Federalist Society court, even a Republican court—but not a MAGA court.
Last spring, Justice Samuel Alito had drafted an opinion dropping federal charges against many of the January 6 insurrectionists who violently stormed the Capitol. The ruling in Fischer v. United States had not yet been released. Then The New York Times published a startling story: Alito himself had flown the flag of insurrection at his home. (He briefly blamed it on his wife: “She is fond of flying flags.”) Days later, it was reported that he had flown such flags at his vacation home as well.
Awkward! Grounds for recusal? Time to rethink the ruling? Nah. Instead, Chief Justice John Roberts quietly took Alito’s embarrassing name off the opinion and slipped his own name onto it instead.
That is just one of the gobsmacking revelations from a story by Jodi Kantor and Adam Liptak that appeared in The New York Times last weekend. The lurid news of the day quickly overwhelmed it—the gunman arrested outside Donald Trump’s golf course, the continued smear campaign by former President Trump and Sen. JD Vance (R-Ohio) against the Haitian immigrant community in a small city in Ohio, and more.
Throughout American history, overreach by the Supreme Court has provoked a response.
But we must not let these revelations fade from view. They paint a damning and indelible picture of how John Roberts, for all his vaunted “institutionalism” and piety about calling “balls and strikes,” steered the court to shield Trump from accountability for his misdeeds.
Call me naïve. At the beginning of this year, I thought I had few illusions about the court. I had just published a harshly critical book, The Supermajority. But I felt confident in asserting that the court was a conservative court, a Federalist Society court, even a Republican court—but not a MAGA court. It had not yet shown an appetite for excusing Trump from the reach of the law.
So I, along with most legal observers, assumed that the justices would let Trump’s trial proceed. I thought there was a good chance it would be unanimous, that Roberts would work behind the scenes to ensure that the court spoke with one voice on major issues of presidential power and constitutional law. That’s what other chief justices did, most notably Warren Burger in United States v. Nixon, the Watergate tapes case and the closest analogue to the Trump trial ruling.
After all, we all thought, Trump v. United States was legally easy. Indeed, the possibility of criminal charges was the stated reason why Republican senators did not vote to convict him of the January 6 charges in Trump’s second impeachment trial.
Many of us, too, sensed there was a deal afoot—a unanimous ruling that Trump could not be thrown off the ballot by one state under the 14th Amendment and a principled ruling on the criminal trial.
Behind the velvet curtain of the court, though, there was no deal. Roberts wrote a memo in February—before the court had even announced that it would hear Trump’s appeal—declaring that the court would give the former president a huge win. “I think it likely that we will view the separation of powers analysis differently” from the appeals court, he wrote. As Kantor and Liptak summarized, “In other words: grant Mr. Trump greater protection from prosecution.”
They detailed myriad other ways that Roberts steered rulings Trump’s way. He froze out Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. The ruling was sloppy and immunized vast areas of potential presidential wrongdoing. The Times noted that NYU Law professor Trevor Morrison had discovered that Roberts selectively edited a quote from a key earlier ruling to help Trump.
The resulting ruling tells future presidents that they can break the law, plainly and flagrantly. As long as they conspire with other government officials, it will be effectively immunized. (Order your White House counsel to pay hush money, as Richard Nixon did, not your campaign manager, and you’ll be off the hook.)
The opinion has widely and correctly been scorned as one of the worst in American history—a rip in the constitutional fabric. The Times’ tick-tock makes clear that this was not a baffling anomaly. Rather, it is the biggest, most visible, and perhaps most consequential in a series of actions taken by a corrupted court. It follows Citizens United, Shelby County, and other rulings that systematically undid key democratic protections.
Throughout American history, overreach by the Supreme Court has provoked a response. Dred Scott did in the 1850s—it helped lead to a civil war. Reactionary rulings such as Lochner did in the early 20th century. Trump v. United States should join with the Dobbs abortion rights ruling to spur a similar backlash today.
We’ve argued for an 18-year term limit for Supreme Court justices, because nobody should have too much public power for too long. And we’ve urged a binding code of ethics, which would have forced Justices Alito and Clarence Thomas to step out of these key cases. These reforms are widely popular. Most recently, a Fox News poll this summer found that 78% support term limits.
The court is a broken institution. It’s time to fix it. The latest revelations remind us that otherwise, the fix is in.
Let me tell you this: No one wakes up one morning and chooses to be homeless. No one says to themselves, “How fun would it be for my kids and my family to live in a tent without food, water, school, or transportation?”
I listened with profound sadness to the recent Supreme Court decision Grants Pass v. Johnson, which opens the door for people to be arrested simply for lacking shelter. This decision makes it legal for local governments to target, fine, and even incarcerate people who fall asleep in public areas, regardless of whether there’s safe, accessible shelter available.
Where’s the compassion? Where’s the justice?
I know what it’s like to be without a place to call home. In the years before the pandemic, my husband and I were working hard to buy a house for our children and the animals we rescued. I’d overcome an opioid addiction. We had a small business and were starting to achieve our dreams.
But when the pandemic hit, we lost our business, and our debts quickly mounted. We’d nearly completed the purchase of the house we’d been renting, but we lacked the money to transfer the deed. The owner of the deed decided to evict us.
We live in a small, rural West Virginia town where only two shelters are available—and none that would take our pets. So we lived in a tent with our children and animals for three months.
I’m deeply saddened that our leaders would criminalize people suffering poverty, as if we were living in a Charles Dickens novel.
Losing your home is incredibly destabilizing. Without a fixed address, you can lose benefit payments, official mail, jobs, and other critical opportunities. When I was evicted, I didn’t have time to switch over my license plate to my new vehicle, which caused me to lose my license. I still haven’t been able to regain my driving privileges.
We had to walk long distances for food and water, and we had no way to shower. My children had to change schools, and the emotional strain on them caused behavioral and mental health challenges that no child should have to experience.
We survived with help from the Supplemental Nutrition Assistance Program (SNAP), or food stamps. We got a tiny amount of cash assistance from the Temporary Assistance to Needy Families program and health care through Medicaid.
We were eligible for housing assistance, but the wait was impossibly long due to the lack of available affordable housing. That’s not just a problem in West Virginia—the United States has a shortage of more than seven million affordable housing units for people with very low incomes.
Let me tell you this: No one wakes up one morning and chooses to be homeless. No one says to themselves, “How fun would it be for my kids and my family to live in a tent without food, water, school, or transportation?”
The owner of the deed to our house finally relented and reduced the deed fee so we could take possession of our house and move back home. But so much damage had been done to the kids already—and we lost most of our rescued animals.
Once housed, I finished my Masters in Public Administration. But with a felony conviction from my earlier days suffering through addiction, finding a job is challenging. My husband works but has medical challenges. We live paycheck to paycheck, hoping another disaster won’t put us out on the street.
Things need to change for families like mine. The Supreme Court’s cruel decision to penalize people who are suffering is a big step in the wrong direction. How is fining and arresting people who are too poor to pay going to help?
Here’s a better idea. We need to invest in affordable housing, ensure people are paid living wages, and support struggling families with a robust safety net.
I’m deeply saddened that our leaders would criminalize people suffering poverty, as if we were living in a Charles Dickens novel. Our laws must be better, and we must hold our officials accountable. We work hard at doing the right thing—they should, too.
The assault by the six right-wing justices on the Chevron doctrine is an assault on everyday people, carried out on behalf of corporations and the Court’s wealthy benefactors.
Last month, the Supreme Court broke with four decades of precedent and overturned Chevron deference, a cornerstone of administrative law that has been cited by federal courts over 18,000 times. The 6-3 ruling, handed down on party lines in the cases Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, eliminated a judicial doctrine that had long instructed federal courts to defer to federal agencies’ interpretations of ambiguous or unclear laws passed by Congress, rather than have judges act as regulatory policy-makers.
Chevron deference was established in the 1984 Supreme Court case Chevron v. Natural Resources Defense Council for two main reasons. First, because federal agencies are staffed with career civil servants and subject matter experts like scientists, researchers, and data analysts who understand the nitty-gritty details of regulatory policy-making far better than any given judge. Second was the importance of democratic accountability and the separation of powers, with Justice John Paul Stevens writing in the Chevron decision that “federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do.”
In her blistering dissent for Loper Bright, Justice Elena Kagan excoriated the Court’s right-wing majority for “giv[ing] itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law.” The Court itself had inadvertently showcased the danger of having judges act as regulatory experts a day earlier, when Justice Neil Gorsuch repeatedly confused the air pollutant nitrogen oxide with the anesthetic nitrous oxide (more commonly known as “laughing gas”).
But Chevron’s repeal is no laughing matter. Allowing unelected, lifetime-appointed federal judges to invalidate countless regulatory protections based purely on their own political preferences will open the floodgates to a corporate legal assault on crucial regulatory protections—from clean air and water, to food and drug safety, to labor and civil rights.
Curiously, Chevron was once celebrated by conservatives (including the late Antonin Scalia), as it allowed the Reagan administration to continue its industry-friendly regulatory approach unimpeded by the more liberal federal courts at the time (the DC Circuit ruling overturned by SCOTUS in Chevron was written by then-circuit judge Ruth Bader Ginsburg). But over the past decade, as Democrats regained control of the executive branch and used Chevron deference to check corporate power, conservatives have changed their tune. Aided by the GOP’s packing of the courts with Federalist Society alumni, the conservative legal movement and Big Business now see the unelected judiciary as the best long-term venue for dismantling the administrative state.
Allowing unelected, lifetime-appointed federal judges to invalidate countless regulatory protections based purely on their own political preferences will open the floodgates to a corporate legal assault on crucial regulatory protections—from clean air and water, to food and drug safety, to labor and civil rights.
Their most powerful ally in this effort has been Justice Clarence Thomas, a former supporter of Chevron doctrine whose about-face has been equally opportunistic. According to The Lever, Thomas—who wrote a landmark opinion upholding Chevron in 2005—began working to overturn the doctrine after he and his wife received lavish undisclosed gifts and financial support from wealthy conservative benefactors, including real estate mogul Harlan Crow and Federalist Society leader Leonard Leo. Records unearthed by ProPublica have also revealed that Thomas was invited to fundraising events held by fossil fuel billionaire Charles Koch, whose donor network has long sought the overturning of Chevron.
These wealthy benefactors played a hidden role in the successful overturning of Chevron this term by using the disputes about federal fishing fees in the Loper Bright and Relentless cases as stalking horses against the doctrine. Petitioners in both cases were represented pro bono by lawyers with close ties to the Koch network. In Loper Bright, herring fisherman Bill Bright was represented by three lawyers who also work for Americans for Prosperity, one of the Koch Network’s most prominent organizations. In Relentless, the petitioners were likewise represented free of charge by the New Civil Liberties Alliance (NCLA), a right-wing litigation group that has received over $5 million from Koch-affiliated organizations and $4 million from Leonard Leo’s dark money groups.
The Court’s power brokers have also used amicus curiae (“friend of the court”) briefs to engage in judicial lobbying. In Loper Bright and Relentless, we found 19 examples of this practice. Right-wing think tanks Cato Institute, Competitive Enterprise Institute, and Texas Public Policy Foundation—who all filed anti-Chevron doctrine amicus briefs in Loper Bright—have received millions in donations from Koch organizations. The Board of Trustees for the Manhattan Institute, another Koch-funded Loper Bright amicus filer, is chaired by Justice Samuel Alito’s wealthy fishing buddy Paul Singer and counts Harlan Crow’s wife Kathy among its members. Leonard Leo has similarly bankrolled several amicus filers, including the Mike Pence-led Advancing American Freedom, the anti-abortion group Students for Life of America, and (conspicuously) the recently-launched fishing industry lobby group NEFSA.
Despite these flagrant conflicts of interest, neither Justice Thomas nor Justice Alito recused themselves from Loper Bright or Relentless. In fact, the only Justice to recuse from either Chevron case was Ketanji Brown Jackson, who had participated in oral arguments for Loper Bright while serving as a circuit judge.
The devastating impact of Chevron repeal has been compounded by other radical party-line power-grabs made by the Court this term.
The Loper Bright decision is already bearing fruit for its corporate supporters. Just hours after the decision, Eastern District of Texas Judge Sean D. Jordan cited it in his decision to partially block a Department of Labor rule that would have made over 4 million workers eligible for overtime pay. Loper Bright has also been cited in at least four other legal challenges against the DOL’s protections for tipped and gig workers, as well as a new lawsuit filed by three New Jersey hospitals against HHS rules governing Medicare reimbursement. Experts at the Center for American Progress have outlined the many other regulatory protections that could be at risk post-Chevron, including fair housing and anti-discrimination rules, relief for student borrowers, the EPA’s new vehicle and power plant emissions standards, and the CFPB’s crackdown on predatory junk fees.
The devastating impact of Chevron repeal has been compounded by other radical party-line power-grabs made by the Court this term. In SEC v. Jarkesy, the conservative majority made it much harder for the federal government to prosecute white collar criminals, while also threatening the structure of many administrative agencies. And in Corner Post v. Board of Governors of the Federal Reserve System, the Justices functionally eliminated the statute of limitations for challenging new federal regulations. In her dissent for the latter, Justice Jackson warned that “the tsunami of lawsuits against agencies that the Court's holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government.”
Of course for the right-wing, devastation is the goal. The Court’s dismantling of the administrative state follows Donald Trump’s own attempt to do so in the waning days of his presidency through the short-lived Schedule F scheme, which would have empowered the president to fire thousands of career civil servants at will and replace them with political loyalists. Though repealed by the Biden administration, restoring Schedule F remains a central plank of both Trump’s 2024 campaign and the Heritage Foundation’s Project 2025.
Corporate actors and right-wing activists are attacking the administrative state because they know how important it is for protecting the public from unchecked corporate power.
If nothing else, the end of Chevron should end debate among court-watchers as to whether any of the Roberts Court’s six conservative members (including Loper Bright author John Roberts himself) are “moderate.” Loper Bright is one more example in a series of landmark rulings— including Citizens United v. FEC, Janus v. AFSCME, Dobbs v. Jackson Women’s Health, and the recent Trump v. United States—which reveal what John Roberts and his Court actually care about. They have no regard for long-held precedent or for the rule of law, only far-reaching power-grabs that benefit the Federalist Society and Big Business. Their flagrant disregard for judicial ethics and the separation of powers should compel Congress to rein in the Court’s unchecked power by codifying Chevron deference into law, enacting a binding and enforceable Supreme Court ethics code, impeaching Justices Thomas and Alito, and expanding the Supreme Court.
Corporate actors and right-wing activists are attacking the administrative state because they know how important it is for protecting the public from unchecked corporate power. So long as the Supreme Court retains its corrupt right-wing majority, the future looks bright for Big Business. For the rest of us, the Court’s relentless power-grabs will make everyday life much worse.