Whether the Roberts Supreme Court will continue to push American jurisprudence to the right — bending the law toward their preferred policy outcomes rather than precedent or originalist intent — is no longer a matter for debate.

The question is how brazenly and how quickly it will press forward in dismantling democratic guardrails and protections against government aggression?

One need look no further than the spate of unreasoned shadow docket decisions issued by the court over the summer to understand that this court is moving to the right at unprecedented speed.

Justice Ketanji Brown Jackson hit the mark when she called the majority’s decisions— especially in shadow docket cases — jurisprudential “Calvinball,” where the second standing rule is that the Trump administration always wins.

The court regularly stayed lower-court injunctions that would have maintained the status quo while significant cases were being litigated. It permitted the Department of Education’s effective dismantlement in McMahon v. New York. It ended nationwide injunctions preventing the government from acting in potentially illegal and unconstitutional ways in Trump v. CASA. It allowed the government to deport immigrants to third countries — like El Salvador, South Sudan, Eswatini and Uzbekistan — without any consideration for whether they could face violations of the Convention Against Torture in DHS v. D.V.D.

In Trump v. Slaughter, the Roberts Court — in an unreasoned decision — effectively overturned the 90-year-old precedent of Humphrey’s Executor v. U.S., which restricted the president from firing members of congressionally created agencies without cause. Likewise, in Department of State v. Aids Vaccine Advocacy Coalition, the court undermined Congress’s constitutional power of the purse, finding instead that the administration can withhold appropriated federal funds against Congress’s mandate.

Even five years ago, many of these decisions would have been considered beyond the pale of judicial legitimacy, as they override longstanding precedent and the historical understanding of the constitutional separation of powers. Now, they’re handed down every week. Indeed, Justice Clarence Thomas recently indicated during a speech at Catholic University that he was more than willing to overturn precedent if he thinks “(it’s) totally stupid.”

To that extent, the court has been asked to reconsider its 2015 Obergefell v. Hodges decision, which legalized same-sex marriage nationwide.

This term, the Roberts Court will have the opportunity to destroy what remains of the Voting Rights Act of 1965 (VRA) following Shelby County v. Holder, which struck down a precedent requiring the Department of Justice to approve voting-related changes to rules in jurisdictions with a history of engaging in racial discrimination.

In Callais v. Louisiana, the court has been asked to strike down Section 2 of the VRA, which it upheld as recently as 2023, prohibiting racial discrimination in the creation of voting maps.

In NRSC v. FEC, the court has been asked to overturn a 2000 case prohibiting unlimited monetary campaign coordination between individual candidates and parties.

If the Roberts Court sides with the challengers in these cases, it will lead to more anti-democratic gerrymandering and the influence of special interest money in elections, both of which are highly unpopular among Americans of all stripes.

This term, the court will also hear three cases involving LGBTQ+ rights — Little v. Hecox (banning transgender students from collegiate sports), West Virginia v. B.P.J. (prohibiting transgender students from high school sports), and Chiles v. Salazar (questioning whether state conversion “therapy” bans violate the First Amendment). A finding in favor of bans on transgender students’ participation in sports would likely supercharge the nationwide anti-trans movement, which has seen 700 bills introduced nationwide.

Notably, there appear to be fewer than 10 trans athletes out of 500,000 competing in college sports, and trans students account for 1 percent of the 8 million high school athletes in the nation. Likewise, a finding that conversion therapy bans are unconstitutional would result in significant damage to the people subjected to it, as conversion practices are linked to depression, PTSD, suicidal thoughts and more.

The fact is, the Roberts Court is no longer hiding behind a veneer of impartiality. Hawaii Supreme Court Justice Todd Eddins recently authored an extensive rebuke of the Roberts Court, noting that it now engages in “ideology-driven jurisprudence” where “pretend law and pretend facts sub for real law and real facts.”

The Roberts Court’s decisions over the last several terms put proof to that theory, and the right-wing majority will likely continue to add to it this term.

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ABOUT THE WRITER

Devon Ombres is the senior director for Courts and Legal Policy at the Center for American Progress. He wrote this for InsideSources.com.

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