The past few years at the Supreme Court have been remarkable, but this term closed in a fashion that suggests the conservative supermajority has perhaps pushed America's democracy to a tipping point.
The term ended with the Supreme Court’s conservative justices handing major victories to former President Donald Trump and his right-wing supporters. For instance, the Court ruled in favor of a January 6 rioter, which could impact cases pending against hundreds of others who were charged with participating in the 2021 attack on the US Capitol. In a separate decision, SCOTUS struck down the Chevron deference, significantly reducing the power of experts at federal agencies to regulate everything from the food we eat to the air we breathe to safety in the workplace. Lastly, the Court voted 6-3 along ideological lines to dramatically expand presidential power and establish that presidents — including Trump — are entitled to substantial immunity from criminal prosecution.
In the immunity and Chevron decisions, six unelected, Republican-appointed justices fundamentally reshaped American government. Since Trump installed three justices and created a conservative supermajority during his presidency, the Supreme Court has pushed our country not only further and further to the right, but further and further from its democratic values. If Trump wins in November, matters may get much, much worse.
First and foremost, Trump would potentially get to put more justices on the Court. He already appointed justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett during his first term. The oldest justices are Clarence Thomas, 76, and Samuel Alito, 74. It’s possible that at least one of them could step down so that Trump can put a younger, perhaps even more conservative jurist on the bench.
At the same time, the liberal minority could get smaller. Justice Sonia Sotomayor is 70 years old, has Type 1 diabetes, and may have, at times, in recent years traveled with a medic. If she — or either of her two liberal colleagues — had to step down while Trump is president, the imbalance of the court could increase to a 7-2 conservative supermajority. Should Trump get to make the conservative Court younger, more conservative, or both, SCOTUS could be controlled for decades by justices who are pro-gun, pro-corporation, anti-abortion, or anti-LGBTQ+ rights — if not all of the above.
It’s also worth considering that the conservative Court could become bolder with handing down radical decisions during a second Trump term even if the makeup of the Court stays the same. For example, this term the justices rejected a challenge to mifepristone, one of the drugs that make up what's known as the abortion pill and what medical professionals have called “among the safest medications” used in medical practice. However, this was no victory for abortion rights. The justices didn’t rule on the merits of the case, nor did they address the merits of a separate case this term regarding emergency abortion access in Idaho. They punted on the issues, which has led some legal experts to question whether the justices were partaking in political gamesmanship.
The Idaho case will now continue in the lower court, and more cases challenging access to abortion, including medication abortion, are likely to come. These questions could very well end up back before SCOTUS in the near future, and the conservative majority may feel less restrained when it isn’t an election year.
Maybe this year the justices waited to do more damage to abortion access because they didn’t want to face more backlash at a time when, post-Dobbs, support for abortion rights has reached new heights. Maybe they didn’t want to be responsible again for influencing an election, as abortion rights won in every single election where they were on the ballot after the fall of Roe v. Wade, even in Republican-controlled states. Maybe they wanted to lay the groundwork for, and even normalize, future and more meaningful action restricting abortion access. Maybe that future action will be easier to pursue because it will feel less politically controversial when a Trump administration is pursuing its own set of extremist policies. Maybe the conservative majority would find less reason to hold off on issuing more controversial rulings on gun safety, LGBTQ+ rights, and religious freedoms too.
Not long ago, this line of reasoning would have been dismissed out of hand because, so the common argument went, justices aren’t political actors who use their power to advance political agendas. Chief Justice John Roberts said during his confirmation hearing, “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them.”
But the Supreme Court’s conservative majority hasn’t been calling balls and strikes — it's been rewriting the rules, seemingly according to its own whims and ideologies.
Consider how quickly the conservative majority has moved to dismantle decades worth of precedent. In 2022, Roe v. Wade was overturned, and nearly 50 years of precedent with it. It was the very first full term in which all three of Trump’s appointees were on the bench. Trump promised during his 2016 campaign to appoint anti-abortion justices, and almost as soon as they could, Trump’s appointees helped restrict abortion access. In 2023, the conservative majority effectively struck down affirmative action, reversing 45 years of legal precedent. And this year the Court overturned 40 years of precedent in the Chevron ruling, which has also long been a target of the right-wing. The conservative justices have acted swiftly to tear down enduring pillars of our legal system, suggesting they may only be getting started.
At least a majority of the conservative justices are supposedly “originalists,” who say questions about the Constitution should be answered by the original meaning or intent behind its text. The architects of the Constitution fled the “tyranny of monarchy” to create a democratic system of government, so it seems particularly far-fetched that they would agree with the conservative majority’s decision to put presidents above the law. Justice Sotomayor said it well in her dissent of the immunity ruling: “The Court now confronts a question it has never had to answer in the Nation’s history: whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.”
It’s also worth noting that there are proposals out there for reforming the Supreme Court and curbing its politicization. But if Republicans win big in November, reform will likely be out of reach at a time when it couldn’t be more urgently needed. Justices Thomas and Alito have accepted lavish gifts from GOP donors. One of those donors, who helped pay for Alito to take a luxury fishing trip, has had business before the Court in the years since. And this year, reports surfaced that flags embraced by Trump supporters and the “Stop the Steal” movement were flown at two of Justice Alito’s homes.
The Court’s most conservative justices have increasingly been acting as though they are beyond oversight — to such an extraordinary degree that Representative Alexandria Ocasio-Cortez (D-NY) filed articles of impeachment against justices Alito and Thomas. It’s unlikely that AOC’s effort to hold those justices accountable will go anywhere in the Republican-controlled House. Why would Republicans rein in the Supreme Court when its conservative majority is busy advancing their right-wing agenda?
All of this means that if Trump takes back the White House, if Republicans do well in their Congressional races — or both — the Supreme Court’s hard turn to the right could accelerate, and the unethical behavior of some of the justices could continue to go unchecked. And if Trump pursues his most extreme campaign promises, it’s hard to say whether he can be stopped. The immunity decision means Trump would be returning to the White House with more power than before, largely uninhibited by fears of legal accountability.
In just one term, a small group of unelected conservatives drastically changed the way our government functions. When they rewrote the terms of American democracy and put the president above the law, they may have put us all on a path to tyranny. November’s election will determine just how far down that path America might go.
Stay up-to-date with the politics team. Sign up for the Teen Vogue Take
