“What is really different — and dangerous — about today’s justices is not partisanship, but rather a cognitive trap that Nobel Prize-winning psychologist Daniel Kahneman has called the “most damaging” of all human biases: overconfidence. Put simply, today’s justices possess a frightening degree of certainty that they can alone answer society’s most pressing problems with just the right lawyerly argument.
The roots of this certitude developed, perhaps surprisingly, from a noble place. When confronted with legal challenges to a slew of racially discriminatory laws in the mid-20th century, the justices needed the ability to proclaim those laws inconsistent with our Constitution’s one, true meaning. For good and important reasons, that is exactly what the court did.
But the power to declare the law’s meaning — and to override democratically enacted policies — is seductive. High constitutional theories such as living constitutionalism and originalism were advanced to justify judicial intervention in disputes ranging from guns to abortion and religion to the death penalty. And our overconfident Supreme Court was born.
The evidence of this overconfidence is everywhere around us, and it affects both sides of the political spectrum. One rough measure is the frequency with which the court overrules the judgment of our nation’s elected lawmakers. Whereas the court struck down less than one act of Congress per year between 1788 and 1994, the court has invalidated an average of more than three federal laws per year since then.”
“Perhaps most significantly, the court’s overconfidence problem is apparent in its opinions. In overturning the right to abortion, for example, Justice Samuel Alito’s opinion declared that the legal reasoning embraced by respected jurists such as Sandra Day O’Connor, Anthony Kennedy, and Thurgood Marshall was “far outside the bounds of any reasonable interpretation.” Never mind that the “most important historical fact” on which Alito rested his own conclusion — the number of states that banned abortion in 1868 — was riddled with historical inaccuracies.
Opinions reaching liberal results often reflect overconfidence bias, too. In Kennedy v. Louisiana, for example, the court struck down the death penalty for cases of aggravated child rape. Although the Constitution was far from clear on the matter and elected officials had reached differing views, a bare five-justice majority wrote that “in the end,” it is “our judgment” that must decide “the question of the acceptability of the death penalty.””
“Overconfidence bias has led to the court’s legitimacy crisis by unleashing the justices’ underlying partisan instincts. Humble justices can overcome those instincts by admitting uncertainty and deferring to others.”
“Mexico’s Supreme Court threw out all federal criminal penalties for abortion Wednesday, ruling that national laws prohibiting the procedure are unconstitutional and violate women’s rights in a sweeping decision that extended Latin America’s trend of widening abortion access.”
“If you are angry at the Supreme Court, you are right to be angry. Many of this Court’s decisions are completely lawless — such as the Court’s recent decision in Biden v. Nebraska (2023), which ignored a federal law that unambiguously authorized Biden’s student loan forgiveness program. They demand anger. And that anger isn’t just righteous, it is useful.
But I also want to counsel against despair — that is, I want to counsel against the absence of hope.
The Court’s GOP-appointed majority is starting to draw some fences around the conservative legal project. The Court appears unwilling to attack entrenched parts of the American welfare state. It smacked down a Trump judge who attempted to ban the abortion drug mifepristone. It has rejected legal arguments that would devastate the US economy or threaten its national security.
And, most importantly, the Court is now signaling that it may preserve America’s ability to hold free and fair elections (or, at least, to hold elections that are as free and fair as possible in a nation with an Electoral College and a malapportioned Senate).”
“The establishment clause provides simply that there can be no law “respecting an establishment of religion.” It does not explain what an “establishment of religion” is. Nor does it lay out in any detail when the government can and cannot provide benefits to a religious institution.
Armed only with this vague text, the Supreme Court has offered several competing explanations for why the establishment clause exists and what it was intended to prevent. At times, the Court has said that it exists to prevent the government from coercing nonbelievers into acts of devotion they find objectionable. At other times, the Court has described the establishment clause as a nod to pluralism — something that allows many religious traditions to thrive in the United States by forbidding the government from taking sides in religious debates.
Everson was rooted in the first of these two rationales, the belief that the government may not coerce others into religious exercise. As Justice Hugo Black wrote in that case, the clause is intended to universalize a Virginia statute, authored by Thomas Jefferson, which provided that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief.”
Everson read this prohibition on coerced religious activity expansively to include not just direct use of force against nonbelievers, but also the use of taxes collected from the general public to fund religion. As Black wrote, “individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.””
“Fifteen years later, in Engel v. Vitale (1962), Black laid out a different theory of why the establishment clause exists.
In Engel, the Court struck down a school district’s policy of requiring teachers to begin each school day by reciting a prayer authored by the school board. “One of the greatest dangers to the freedom of the individual to worship in his own way,” Black warned, “lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.”
The central idea animating Engel was that, if the government is allowed to write prayers or otherwise put its seal of approval on particular religious practices, then US politics will inevitably be consumed by religious believers from competing faiths, all lobbying elected officials to make sure that their religion receives the government’s blessing.
The Court reached this conclusion after considering 16th-century English history, when Parliament approved a Book of Common Prayer that “set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England.” This led to perpetual lobbying, and frequent strife, over just what prayers the government should endorse and which ones it should reject. Powerful religious groups “struggled among themselves to impress their particular views upon the Government,” while less powerful religious believers literally fled the country — many of them becoming early American colonists.
According to Engel, the First Amendment was drafted in large part to prevent this kind of strife among religious factions from occurring in the United States. The founding generation, Black wrote, was not willing “to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box.”
Thus, while Everson read the establishment clause as a shield against the government coercing nonbelievers into participating in religion, Engel saw it more as a safeguard for pluralism. The idea behind the later decision was that, for multiple faith traditions to coexist peacefully in the United States, the government had to be hyper-cautious about picking favorites among them.
Of course, these two theories of the establishment clause are not mutually exclusive”
” before the Roberts Court started dismantling the establishment clause’s safeguards, the Court recognized two values implicit in this clause: 1) the right to be free from coerced religious activity, and 2) the right to live in a pluralistic society where the government does not favor one person’s religion over the other. The right against coercion extended not just to direct pressure by the state, but also to more subtle forms of pressure such as a public school ceremony that effectively forces a student to choose between participating in a prayer or risking ostracizing themselves from their classmates. Meanwhile, the pluralistic right prevented the government from endorsing a particular religious viewpoint above others.
All of that went by the wayside, however, in Kennedy v. Bremerton School District (2022).”
“Bremerton is a mystifying decision, in part because the six Republican-appointed justices in the majority took great liberties with the case’s facts. It involved a high school football coach who would pray at the 50-yard line following games — in full view of students, players, and spectators, and sometimes surrounded by many of them as he was praying. There are photographs of crowds surrounding this coach as he prayed, some of which were included in Justice Sonia Sotomayor’s dissent.
Yet Justice Neil Gorsuch, who wrote the Court’s opinion, falsely claimed that this coach only wanted to offer a “short, private, personal prayer.””
“while the Bremerton opinion is not a model of clarity, two lessons can be extracted from it. One is that the ban on government endorsements of religion — the mechanism the Court used to ensure that a plurality of faiths would thrive in the United States — is now dead. The other is that, while the Court still recognizes that some forms of government coercion into religious behavior are not allowed, its Republican majority appears eager to narrow the definition of “coercion.” There may even be five votes for Scalia’s position — that the government may actively promote religion so long as it does not use force or the threat of penalty to do so.”
“One form of coercion that the current Court permits is the government may now take taxes from a nonbeliever — taxes that the nonbeliever must pay to avoid criminal sanctions — and use them to fund religious education.”
“Read together, the Roberts Court’s establishment clause cases suggest that the Court probably will not neutralize this clause altogether. But they have already neutralized many of its modern applications, and they appear likely to endorse government behavior that would not have been tolerated even in the recent past.”
“the fact that they’re unwilling to give conservatives a win in every case may say as much about what advocates are asking for as it does about the court’s ideological bent. The two big surprises this term — the ruling involving the Constitution’s elections clause and the decision involving the Voting Rights Act — were both cases that previous courts probably wouldn’t have agreed to hear at all. The aggressive arguments in both cases are just two examples of the way the court’s docket is changing, with right-wing legal groups and politicians asking for much further-reaching outcomes than they would have even five or six years ago.”
“Yes, those publications have liberal biases. And, yes, some progressives are using the Thomas/Alito/Gorsuch reports to undermine the conservative majority’s legitimacy and push dangerous court expansion plans. But all of these nondisclosures, luxury trips, and gift-taking still seem sleazy.”
“In the less than three years since President Joe Biden took office, the Supreme Court has effectively seized control over federal housing policy, decided which workers must be vaccinated against Covid-19, stripped the EPA of much of its power to fight climate change, and rewritten a federal law permitting the secretary of education to modify or forgive student loans.
In each of these decisions, the Court relied on something known as the “major questions doctrine,” which allows the Court to effectively veto any action by a federal agency that five justices deem to be too economically significant or too politically controversial.
This major questions doctrine, at least as it is understood by the Court’s current majority, emerged almost from thin air in the past several years. And it has been wielded almost exclusively by Republican-appointed justices to invalidate policies created by a Democratic administration. This doctrine is mentioned nowhere in the Constitution. Nor is it mentioned in any federal statute. It appears to have been completely made up by justices who want to wield outsize control over federal policy.
And the implications of this doctrine are breathtaking. In practice, the major questions doctrine makes the Supreme Court the final word on any policy question that Congress has delegated to an executive branch agency — effectively giving the unelected justices the power to override both elected branches of the federal government.
Consider, for example, the Court’s recent decision in Biden v. Nebraska, which invalidated a Biden administration program that would have forgiven up to $20,000 in debt for millions of student loan borrowers. The Court did so despite a federal law known as the Heroes Act, which permits the secretary of education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs … as the Secretary deems necessary in connection with a war or other military operation or national emergency.”
So Congress explicitly granted the executive branch the power to alter or forgive student loan obligations during a national crisis like the Covid-19 pandemic. But six justices, the ones appointed by Republican presidents, decided that they knew better than both Congress and the executive.
The premise of the major questions doctrine is that courts should cast an unusually skeptical eye on federal agencies that push out ambitious new policies. As the Court said in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
In practice, however, this doctrine functions more as a freewheeling judicial veto than as a principled check on agencies. The Heroes Act, after all, is crystal clear in giving Education Secretary Miguel Cardona — and not the Supreme Court — final say over which loans are forgiven during a national emergency.”
“The government may not compel someone to “create speech she does not believe,” the Supreme Court ruled this morning. In a 6–3 opinion authored by Justice Neil Gorsuch, the Court sided with a graphic designer, Lorie Smith, who wanted to expand into the wedding-website business without being forced by Colorado law to create products celebrating same-sex marriages.
Back in 2021, the U.S. Court of Appeals for the 10th Circuit found that the planned websites would each constitute “an original, customized creation,” designed by Smith “using text, graphics, and in some cases videos” with a goal of celebrating the couple’s “unique love story.” As such, it said they “qualify as ‘pure speech’ protected by the First Amendment.” The lower court admitted that Smith was willing to provide her services to anyone, regardless of race, religion, or sexual orientation, so long as the substance of the project did not contradict her values. It also recognized that “Colorado’s ‘very purpose’ in seeking to apply its law to Ms. Smith” was to stamp out dissenting ideas about marriage. Despite all of that, incredibly, the 10th Circuit held that the state government was within its authority to compel her to create such websites against her will.”
“The ruling in 303 Creative LLC v. Elenis is neither as narrow nor as broad as it (theoretically) could have been. The Court didn’t do away with public accommodations, or businesses prohibited from discriminating against customers on the basis of characteristics such as skin color or national origin. It did note that “no public accommodations law is immune from the demands of the Constitution” and that “public accommodations statutes can sweep too broadly when deployed to compel speech.” (The Colorado law was guilty in this instance.)
The high court also didn’t establish a right for any and every business owner to decline to provide services for same-sex weddings—only those whose services involve expressive activity. Whether a particular service (say, cake baking) is expressive will have to be litigated case by case.
But the majority did decide Smith’s case by appealing to free-expression precedents rather than religious-liberty ones. In other words, the justices didn’t say that the faith-based nature of Smith’s beliefs about marriage entitled her to an exemption. Presumably, a secular person with moral or factual objections to expressing a particular message would receive all the same protections as a Christian or Muslim objecting on religious grounds. As it should be.”