The Unrestrained Power Of The Roberts Majority

This series addresses the high crimes and misdemeanors committed by the Roberts Majority of SCOTUS. Reforming the Court must begin with impeachment of these six. They will strike down any law restricting their power. This should be a campaign issue for every Democrat. Historical restraints on SCOTUS power Over the centuries SCOTUS has adopted guardrails that restrict their claimed unlimited reach. Self-regulation helped it maintain its facade as a court rather than as an unchecked super-legislature. That facade held up until recently. Almost every discussion of public attitudes towards SCOTUS begins with the statement that most people approve or disapprove based on the outcome of specific cases like Dobbs, the abortion case. Republicans generally like Dobbs so they approve of SCOTUS, and almost all Democrats and most independents despise Dobbs and have unfavorable attitudes. For example in this article reviewing two recent books on SCOTUS we are told: The Supreme Court is like ranked-choice voting or Jdate: how you feel about it depends on whether it’s delivering what you want. But that’s not the only criticism of SCOTUS on offer. Most reasonably independent legal academics criticize decisions on technical grounds, grounds that are often not familiar to non-specialists. Many of these fall under the heading of justiciability, which includes standing, ripeness, and subject matter jurisdiction. The Court has historically deferred to lower courts to determine the facts of the cases it reviews, even thought the Constitution grants it the power to determine both law and facts. Art. II §2. It has set up a number of rules that it and lower courts follow, such as the requirements for issuance of interim relief pending final decisions, and the importance of precedent. Legal academics most often criticize opinions of the Roberts Majority on these grounds. For example, much of the criticism, including my own, of Dobbs is based on its outright rejection of precedent acknowledged by all of the members of the Roberts Majority, and expressly acknowledged, misleadingly as it turned out, by the Trump appointees. Examples 1. Standing. Biden v. Nebraska is the student loan case. Biden granted partial forgiveness of certain student loans to aid recovery from the national emergency inflicted by COVID. Several Red states sued to stop it. Only one had standing, Missouri. Years ago Missouri chartered Mohela as a public corporation to service student loans. The directors of Mohela are appointed by the government of Missouri, and it files regular reports with the state. It has the authority to pay dividends to the state if its directors choose, but It never had. First Missouri asked Mohela to file the lawsuit, but it refused, perhaps because winning would harm borrowers. Then Missouri sued in its own right. The Roberts Majority claimed that this satisfied the requirement for standing. Biden’s plan might cost Mohela servicing income, and that was harm to Missouri, because, Roberts says, Mohela is affiliated with the state. Of course, Mohela has its own interests, and it chose not to sue. If Missouri didn’t like this, it could have fired the board and put in a compliant board. But it didn’t. This just seems stupid. But it was necessary so that the Roberts Majority could strike down Biden’s efforts to help regular people on the spurious grounds of the major questions gibble-gabble. 2. Ripeness. A case is not ripe if the alleged injury rests on contingencies that may or may not come about. Consider the case of 303 Creative, LLC v. Elenis. Plaintiff is a web site designer. She claims that she wants to design web sites for weddings but doesn’t want to offer her services to same-sex couples because of her “religious” views. She sues a Colorado agency that handles civil rights matters on the ground that she faces a “credible threat” that it might sue to force her to violate her rights to discriminate. This case is obviously not ripe. The agency hasn’t done anything and might never. Gorsuch wants to rule on this case, so what he calls a credible threat is enough to make the case ripe. 3. Standing and ripeness: In Trump v. California, , entered August 24, 2026, the Roberts Majority granted a stay of an injunction barring enforcement of a proposed US Postal Service rule on mail-in ballots generated to comply with a Trump executive order. The plaintiff states filed suit in April, 2026, shortly after Trump’s executive order. The USPS issued a proposed rule June 2, to take effect August 21. The district court found that the executive order and the proposed rule interfered with the constitutional power of the states to administer elections, and enjoined implementation. The Roberts Majority stayed the injunction, asserting that the states lacked standing because there was no rule when the suit was filed. In addition the case was not ripe because whether the USPS would issue a final rule is “conjecture”. The plaintiff states argued that they’d have to begin planning at once to enable them to comply, but the anonymous writer says But the States “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Clapper, 568 U. S., at 416. And the hypothetical future harm that the States fear—the Secretary’s implementation of §2(a)—is far from “certainly impending.” Ibid. By allowing the States “to bring this action based on costs they incurred in response to a speculative threat,” the District Court “improperly water[ed] down the fundamental requirements of Article III.” So, a proposed rule with an effective date a few weeks out is not a credible threat, but a speculative threat. The rule took effect. The lower court quickly entered an injunction against enforcement, and the case went back to SCOTUS. This time the Roberts Majority tossed it in three sentences, again per curiam. Alito and Thomas publicly dissented. Liz Dye of Public Notice gives a nice description of the “Fox News Grandpas” absurd opinion. 3. Fact-finding. Kennedy v. Bremerton School District shows the willingness of the Roberts Majority to make up its own facts. This is the case of public prayer led by a football coach after games. Here are the facts about those prayer sessions according to Gorsuch: Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks. Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied. Here’s how Sotomayor describes the facts in her dissent: The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. Sotomayor put this picture of one of these prayer events in her dissent: For comparison, check out the facts found by the district court after a trial on the merits, and confirmed by the Ninth Circuit. Here’s a sample of the facts. Kennedy’s religious beliefs required that his prayer occur on the field where the game was played, immediately after the game concluded. Kennedy’s testimony is incredible, and nothing this guy says can be believed. The claim that this is about religion is a nonsensical sham, and the case should be dismissed because the School District properly enforced its rules and its contract. A competent SCOTUS would have dismissed the case as certiorari improvidently granted. The Roberts Majority has an ideological stake in the case, so competent judging is irrelevant. Conclusion There are many other cases in which the Roberts Majority ignores the guardrails that have helped the Court maintain its legitimacy as it undoes our democracy. These six defy those guardrails in pursuit of their ideological goals. Impeach all six. Impeach and convict. Agree completely. I also think that every lower court judge that Trump has gotten confirmed should be given the choice of impeachment and conviction, or they can resign immediately (assuming that there are votes to do so). Many of the judges that GWB had put on the bench as well. If we want to get through this, we will have to get rid of those people in a way they can’t recover from. It is the only way we can recover our standing in the world. We have to live up to the stated values in the Constitution. BRAVO ! “Let’s Roll!” Some of the Supreme Court members are not even capable of accurately filling out their financial disclosures. If they can’t follow something so simple, how could they possible follow any complex topics? Or, on the other hand, maybe they are so corrupt that they are deliberately omitting items. Either way, that by itself should be grounds for removal. They are not promoting justice when operating with such ethical or mental challenges. Alito and Thomas are probably the worst offenders in sleaze and as far as I know Thomas still hadn’t taken up John Oliver’s RV offer. The fact that these two routinely flout the standards they impose on the lower courts is obscene. ‘Do as I say, not as I do’ is a recipe for low morale and confusion. It’s gotten bad enough that the lower courts have been sending pointed messages in their rulings about ‘what’s the policy, really’. Good behavior includes not being on the take. Since we know impeachment won’t occur, hearings might be helpful – but that is a lot of time and effort to expend on a losing issue. It would just be another ‘Democrats are weak’ talking point. It also doesn’t solve the basic problem- political appointments and corruption. I would first push for defining ‘good behavior’ and hold hearings on judicial ethics, and the SCOTUS exception to them. Then, I would expand the Court to include the entire Appellate Circuit Justices. Each circuit could appoint a member to represent them on a review panel, who would pass judgement on conflicts between circuit decisions. Panel members would serve for 7 years. I would do a rotating basis taking two years to get to the 13 by adding 2 representatives per year, then start retiring the longest serving justices at two per year. Decisions by the review panel could be contested by a vote of the majority of the court (all the current appellate justices). The solution to concentrations of power is to expand the power base. Having the justices select their own representatives puts the burden and responsibility on them, and their own reputations become involved. Timing of cases, and the corruption inherent in that, becomes much more difficult. No one President can have such an outsized influence on the court. Appellate Justices already satisfy the constitutional requirements of being appointed and confirmed for life. Basically the only issue would be that they all get a raise to match current SCOTUS pay (a small price). It would help keep our SCOTUS from being so distanced from their circuits and the people. The law can be written so that the current SCOTUS has no say, since they will not be funded. The Appellate Circuits will be funded and they would need to pay the review panel expenses out of their budgets, with each years funding (and their raises) dependent on their implementation of the panel. Originally, SCOTUS served the circuit courts when not in session, and was more representative of the judiciary and the people, so this expansion is necessary in order to better conform with the original intent in the Constitution. We could even hold a full SCOTUS conference each year (all 100+ members), where cases could be nominated and voted on for referral to the board which would be the ultimate test of ‘ripeness’. Any ‘emergency’ or other decisions granted by the SCOTUS panel the prior year could also be reviewed at that time, and rules governing the Review board/ council could be revisited. Politically, this would be in the best interests of the judiciary as a whole, and is not inherently biased towards either party. I think it would be an easy sell to the public overall, using the ‘No Kings’ theme and with the mail in ballot controversy and shadow docket as a whole as part of the campaign to promote it. Since this only diminishes the power of individuals currently on the court, and not the judicial branch as a whole- I think it’s doable. The main argument is reduction of a Presidents power to control the current political makeup of the court, which was never supposed to be a thing anyway (and they still retain that power, just at a smaller percentage of the currently serving court), and eliminates the ‘court packing’ talking point. Continued expansion or reduction is easily addressed by tying it to judicial circuits. Require circuits be expanded or eliminated by two’s, to keep the panel at an uneven number. Within the courts, I think it would help with decisions overall. Knowing that biased/ unsound decisions are less likely to move forward and can hurt the individual judges chances of appointment to the board, plus an added incentive for the justices to police their own to avoid an embarrassing choice to be placed on the review panel/ board. Those serving on the review panel, can be issued a per diem during their service for housing, etc, during that period to avoid financial hardships- but no permanent raise. A Chief Justice would be an administrative, non voting position. I am increasingly concerned by the Roberts SCOTUS ideologues’ near-systematic dismissal and discrediting of lower-court judges’ rulings–even and especially those backed strenuously by fact and precedent and argued with scrupulous fidelity to judicial tradition. If the MAGA Supremes don’t like it, their contempt is palpable. They alone (in their view) possess the gravitas required to tell the rest of us how to live (in subjugation to their wealthy backers). They already subsumed a willing GOP Congress. Now they seem determined to restrict the American judiciary to a Star Chamber consisting solely of themselves. I am watching for a Thomas or Alito retirement before January 3. I am ready to take to the streets over this. Again. It’s hardly being reported on but in Turkey they have started, as of a couple of days ago, rounding up LGBT under the cover of family values. See the Guardian’s reporting https://www.theguardian.com/global-development/2026/sep/17/turkey-raids-detains-dozens-crackdown-lgbtq-activists-journalists I’m on constant alert in my country. I have to protect MY family. A big part of why I am on alert is the current Christianist bent of the Supreme Court. Me just picking my children up from school could be one day construed as me promoting my homosexuality in public or/and in front of other children. (I hope I posted the link correctly.) [fixed /~Rayne] There is no Constitutional requirement that to be appointed a Justice you need to be a lawyer. With regard to packing the Court if Dems could, I have Jon Stewart in mind. AOC. If you’re looking for someone without a law degree, what about Al Franken? Watching YouTube vids of him embarrassing his Senate colleagues makes me nostalgic. “These six defy those guardrails in pursuit of their ideological goals.” All nine justices pursue their ideological goals because they are law unto themselves, individually and in majority voting power. Each one knows it better than you or I do. There is no over arching Constitutional standard to which they are accountable. Normally for a Constitutional oath there would be a definition of terms used in the oath. Our Judicial Oath requires administration of justice without regard to persons (a Presidential immunity decision is without regard to persons!?!?) but the Constitution does not define justice. It couldn’t have if the founders wanted ratification from slave holding colonies/states. A justice definition in 18th century enlightenment terms and slavery were mutually exclusive propositions and a definition would have sidelined ratification and sent us back to a confederation status. The slavery acceptance/no-justice definition sin has been with us ever since. So with an undefined legal term, justices (?) can just make shit up without penalty. Like going to trial for assault and battery and each judge gets to decide what assault and battery definitions are, and maybe even change their mind from case to case. Different judges, different definitions, whatever floats their boat. Judge Jackson thinks her “Kafkaesque” description in the mail voting case pertains to others but it applies equally to her and all the justices and their beliefs in their judicial review power and ability to self-define and apply justice. Impeachment, a political process, cannot happen in a highly polarized situation. What would be legitimate for one side would be illegitimate for the other side. It certainly can’t happen without a common definition and understanding of terms. I am currently reading Eric Foner’s book on Reconstruction and am at the point of Andrew Johnson’s impeachment. It’s a complete farce because of the lack of agreement on what is legitimate. We haven’t moved very far since. I do not agree with your assessment of judging. I laid out my view of the proper role of judges in my post on Dobbs, https://emptywheel.net/2022/05/07/alitos-horrifying-opinion/. It’s part of my criticism of Alito and the Roberts Majority. There is a long tradition of judges in the US and under the common law in the UK, where judges are told to dispense justice with no more than precedent and experiene to guide them. I’ll take this issue up in more detail (with some repitition) in my nex post. The last post in this series is about impeachment, aimed at SCOTUS, but also at cabinet members. For now, Andrew Johnson should have been impeached and convicted. He deliberately refused to carry out the laws passed by Congress in defiance of an express Constitutional mandate. There’s nothing magic at all about the number nine. There were originally five justices and a Chief Justice but that was changed as appellate districts were added and other political issues ending in around 1878. FDR’s attempt to add justices in response to SCOTUS blocking the New Deal scared the Ds away from any more attempts to ‘pack the court’. However, a return to the concept in the earlier part of the 19th century is in order, where each appellate circuit gets its own justice, keeping the CJ as a floater in the case of conflict of interest. 11 numbered districts plus the DC circuit means 12 associate Justices and a Chief. Partly this is due to the torrent of emergency motions filed, especially on Convict-1’s behalf, as well as the complexity of those motions. Granting of certiorari is under SCOTUS rules AFAIK but the addition of justices doesn’t require any Constitutional amendments where most of the other fixes (like age limits) would. No love for the Court of Appeals for the Federal Circuit? I want the patent guys to have a say. It was only ten years ago when Sen McConnell unilaterally changed the number of justices to 8.