The New Supreme Court Session Opens Monday. It Will Not Be Pretty.

The new Supreme Court session will begin, as it always does, on the first Monday in October. As the justices take their seats come October 7, they will do so with ever fewer Americans impressed by the black robes, the Vatican-like intrigues taking place in the marble redoubt on First Street, the authoritative tone of increasingly partisan decisions that are almost impossible to reverse, no matter how infuriating or inexplicable. According to Gallup, only 24 percent of Americans who are or lean Democratic now trust the high court, a drop of 60 percent since the late 1990s. That may largely have to do with the demise of Roe, but there is a broader institutional collapse that cannot be chalked up to abortion alone. 

And it is all the court’s own doing. “It certainly wasn’t inevitable; it didn’t have to be this way at all,” says Melissa Murray, a constitutional law expert at New York University and co-host of the Strict Scrutiny podcast.

If you thought this term might provide a bit of a respite from the tumult, think again. “The first week of arguments will not be a gentle beginning,” says legal expert Mark Joseph Stern of Slate. In its first week alone, the Supreme Court will hear two high-profile cases: Garland v. VanDerStock, about how much power the federal government has the power to regulate “ghost guns,” and Glossip v. Oklahoma, a high-profile capital punishment case that has become something of a referendum on the death penalty. 

It used to be, Murray said, that there was a “rhythm” to the Supreme Court’s work. “You have some blockbuster terms with a major culture war case, and then the next term would be mundane and quotidian,” she said. That has changed as the court’s ideological tilt has become more pronounced: “Now they’re just doing everything. Because when you have a conservative majority, you’ve got to make the most of it while you have it.”

In its second week, the Supreme Court will hear oral arguments in San Francisco v. EPA, which could further weaken an already-eviscerated Clean Water Act. Later in the term, the decision in United States v. Skrmetti—a case originating in Kentucky and Tennessee—will decide how much capacity states have in limiting access to medical treatments for minors with gender dysphoria.  

“There will continue to be a lot of cases delving into the issue of the scope of the power of the administrative state,” a top expert on the conservative legal movement said (he would only speak under the condition of anonymity). In that regard, conservatives won a huge victory in last June when the Supreme Court overturned Chevron v. Natural Resources Defense Council, a 1984 case whose outcome, known as the Chevron Deference, gave experts in federal agencies the final say in how to interpret ambiguous laws. “That whole chapter is not over,” the conservative expert said. “You may see some challenges in the DEI space,” too, he predicted, following the blow to affirmative action in college admissions the high court delivered in 2023. Since then, conservative animus to racial diversity programs has continued to build.

Immigration could also surface as a major judicial issue, the activist said, especially if Donald Trump wins the presidential election and, come January, issues a series of restrictive executive orders. That was the case in 2017, after Trump stopped people from several majority-Muslim countries from entering the United States. Despite a flurry of challenges, the Supreme Court upheld his ban.

The growing power of the court, and the conviction of many justices that they are the foremost custodians of the nation’s founding principles, has led to a crisis of “judicial supremacy,” as Georgetown law professor Brad Snyder put it in 2022. Regardless of who wins in November’s presidential race, the Supreme Court will continue to remake vast swaths of American life according to its own hermetic principles, while the rest of us, remembering those long-ago civics lessons about three coequal branches of government with checks and balances, will wonder how we got here.

I asked the conservative expert who, in his view, was the most important justice on the court. He answered without needing to give the question much thought: “Without question, right now, it’s Justice Thomas.” 

Not all that long ago, Clarence Thomas was considered something a fringe figure, his originalism so severe as to be irrelevant. But as the Supreme Court has shifted right, Thomas has come ever closer to its ideological middle, his standing buttressed first by Samuel A. Alito, Jr., and more recently by Neil M. Gorsuch (who is positioned to be “the next intellectual giant” of the court’s conservative bloc, my conservative source told me).

But conservatives’ capture of the Supreme Court has come at a price. The loss of public trust, which began in the late 1980s, coincides with an intensifying ideological transformation. Now, many Americans view its decisions as hopelessly compromised, legitimate in name only. It didn’t help that some justices seemed to show contempt for public opinion and the old standards of political neutrality: most notable here was Justice Alito flying an upside-down American flag at his home in Northern Virginia, widely understood as a symbol supporting the January 6 insurrection (he had also flown another insurrection-adjacent flag at his beach house on the Jersey Shore, blaming his wife for both).

These revelations, exposed by The New York Times in May, came in the context of the looming ruling in Trump v. United States. When that decision finally came on July 1, Chief Justice John G. Roberts, Jr., writing for the court’s six-justice conservative majority, judged that “the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.” Sure, Roberts did make clear that there is “no immunity for unofficial acts,” in case Trump really did decide to test his invincibility by shooting someone on Fifth Avenue. But that was small consolation.

The immunity ruling was the capstone of conservative victories handed down by a court where three justices had been nominated by Trump (Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett) and two by George W. Bush (Roberts and Alito). During the session that began a year ago and ended last spring, the Supreme Court struck down the Chevron deference; sided with Grants Pass, Oregon, in severely curbing the rights of the homeless to camp in places like parks and public plazas; limited the extent to which prosecutors could charge the Trump supporters who rioted at the U.S. Capitol on January 6; struck down the Biden administration’s rule on air pollution that originates in one states but affects another, as is often the case; nullified a federal ban on gun enhancements known as bump stocks; and upheld South Carolina’s heavily gerrymandered congressional districts, which had been drawn to minimize Black representation.

All those decisions came on the heels of 2022’s Dobbs v. Jackson Women’s Health, a case that originated in Mississippi and became the vehicle conservatives had sought for decades to finally shatter the federal reproductive health protections that had been enshrined in Roe v. Wade a half-century before. After that decision, it became difficult for many Americans, who by and large oppose abortion bans, to see the Supreme Court as anything but a catchment basin for the Federalist Society and Heritage Foundation.

“Courts are supposed to be neutral,” says David Orentlicher, a Supreme Court scholar at the University of Nevada-Las Vegas William S. Boyd School of Law. “And it’s not a neutral court. Judging shouldn’t work like politics.”

It now looks like we were misguided to ever believe that the trends at work on our politics would for some reason spare our courts. “As the nation has become more polarized, especially in the last 15 years, this is what you get,” says author and former federal prosecutor Jeffrey Toobin, whose book The Nine explored the court’s internal dynamics and response to external pressures. “You have a deeply polarized politics, and that’s reflected in the Supreme Court.” 

Not all that long ago, Antonin Scalia was confirmed with a 98-0 majority in the Senate. His ideological opposite, Ruth Bader Ginsburg, received the votes of 96 Senators, with three “nay” votes and one abstention. “We’ll never see that sort of unanimity again,” Toobin said. 

In the spring of 2021, The Wall Street Journal published an explosive investigation that found that “152 federal judges around the nation have violated U.S. law and judicial ethics by overseeing 1,076 court cases involving companies in which they or their family owned stock.” 

As head of the Judicial Conference, a body that meets twice a year to consider issues relating to the federal court system, Roberts has oversight not only of the eight other justices, but of the thousands Article III judges (a reference to the U.S. Constitution) on lower federal circuit and appellate beaches that require Senate confirmation. So his response to the scandal exposed by the Journal was exceptionally revealing, even if it did not seem, at the time, to impact his work on the Supreme Court.

In the year-end report customarily issued on the last day of December, Roberts opened with a defense of the “ample institutional independence” that courts required. “The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and coequal branch of government,” he wrote.

Later in the report, Roberts explicitly acknowledged the Journal investigation, arguing that the ethical lapses the article had identified had allegedly been committed by “a very small fraction” of Article III judges. And their transgressions were “a matter that self-governing bodies of judges from the front lines are in the best position to study and solve.”

In other words, Roberts would clean the Augean stables on his own. That attitude would prevail once more after ProPublica revealed details of the unusually close relationship between Thomas and conservative billionaire Harlan Crow, who gave the jurist gifts like trips on private jets. Another investigation by ProPublica found that Alito had accepted a free “luxury fishing vacation” from Paul Singer, also a conservative billionaire. (Gorsuch has a billionaire buddy, too.)

Even as outrage over these revelations mounted, Roberts declined to testify before Congress about the need for ethics reform. Several months later, he issued a new code of conduct, the first ever for the Supreme Court. But the new code was less than it seemed, reflecting much the same insularity that had governed his response to the Journal exposé two years before. “We can handle this, we can do it all in house,” as NYU professor Murray put it. The new rules were criticized for a lack of a clear enforcement mechanism. Nor did they spell out any penalties.  

It may have all blown over in an earlier age, when the Supreme Court remained shrouded in mystery. “There is so much more information out there” about the court than there was in previous generations, says Lawrence Baum, a scholar of judges and judicial behavior at the Ohio State University. Not only that, but that information is then easily dispersed to the people who are mostly likely to be motivated (which is to say, outraged) by it. 

“The expansion of the media is a big part of it,” Baum said. “Polarization is a big part of it.” News of the conservative justices’ questionable ethics renewed liberals’ outrage over the Dobbs decision, making it seem like the court’s rightward shift was not an organic process but a carefully orchestrated maneuver executed by the likes of Singer and Crow, the whole thing stage-managed by Federalist Society mastermind Leonard Leo, who has been branded “the hidden architect of the Supreme Court.”

And, well, that’s actually more or less the case, whether you love or hate the FedSoc crowd. “The right has been much more efficient in organizing that pipeline,” Toobin says, enshrining not only a six-justice Supreme Court majority but stacking lower courts with young, motivated ideologues. Trump alone successfully nominated 226 Article III judges, all of whom enjoy lifetime appointments. “The right,” Toobin says, chose the judiciary as “the battlefield on which most of their key causes would be fought out.” 

But even with a seemingly safe majority undoing the cannon of administrative law and starting to nip not-so-gently at the sacrosanct (but unenumerated) right to privacy, Roberts does not preside over a happy household. Victory has made the conservative majority defensive while embittering the liberal minority. Sonia Sotomayor’s blistering dissent in the Trump immunity ruling suggested a rift deeper than just differences over judicial philosophy.

The upcoming session could see plenty of tearing down. In addition to the aforementioned cases, “it’s almost inevitable that they will have to deal with election-related cases,” Baum says, with Trump already laying the groundwork to contest the results of November’s presidential contest. And if history is guide, when the Supreme Court gets involved in elections, democracy is a surefire loser.

The ruling in Bush v. Gore came down on December 12, 2000. In a 7-2 decision, the Supreme Court decreed that the recount of Florida’s vote in the previous month’s presidential election, which had been ordered by the state’s high court, amounted to “arbitrary and disparate treatment.” Two liberals, Stephen Breyer and David Souter, agreed that Florida’s election rules presented due process questions, but they disagreed on shutting down the recount. But the five conservatives hung together on that, and the recount was halted. By 5-4, George W. Bush was the new president of the United States. 

Looking back at Bush v. Gore twelve years later, Boston College law professor Mark S. Brodin called it either the worst or second-worst decision ever rendered by the Supreme Court in an article for the Nevada Law Journal. Its only competition for judicial awfulness, in his view, was Dred Scott, the 1857 decision holding that Black people could not be full citizens of the United States or fully enjoy the scope of its rights. 

.“By disenfranchising Florida voters and thereby appointing popular vote loser George W. Bush as President, Bush v. Gore set in motion events which would lead to two wars, neither of which is successfully concluded over a decade later, as well as an unregulated greed-fest on Wall Street that continues to unhinge our economic well-being,” Brodin wrote.

He also quoted the dissent written by John Paul Stevens, the court’s leading liberal eminence, which was joined by Ginsburg. “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” 

Two decades later, Stevens’s warning seems more prescient than ever. Noah Feldman, a law professor at Harvard, points out that there was enormous pressure to resolve the conundrum and select a president. “I can understand why the Supreme Court wanted to intervene,” he says, but the way they did so was “very harmful to the court’s legitimacy.” 

Some date the erosion of legitimacy to the televised hearings over Reagan nominee Robert H. Bork in 1987, or maybe to the even more captivating theater of the Thomas hearings, with their famous Anita Hill cameo, five years later. But unlike Bush v. Gore, those hearings were not within the purview of the court itself, the action instead taking place in the Senate’s hearing rooms. They were referenda on whether Bork and Thomas had the right temperament and judicial philosophy to sit on the Supreme Court, but they were not a referendum on the Supreme Court itself.

“The case was a political question,” Erwin Chemerinsky, now the dean of UC Berkeley School of Law, has written of Bush v. Gore. ‘The Court should have left the dispute to be resolved by Congress.” It didn’t. True, it is very likely that Bush would have still emerged victorious even if the Florida recounted had run its course. But the court prevented that, plunging right into the Florida swamp. And we’ve been stuck there ever since.

Swamps tend to be rife with prehistoric detritus, and this one is no exception. The chief justice at the time of Bush v. Gore was William H. Rehnquist, who had been nominated by Richard M. Nixon. Stevens, the leading liberal, was a Gerald Ford pick. The president with the greatest influence on the court was Ronald Reagan, with three justices to his name (Bill Clinton and George H.W. Bush both had two). The court was in transition, morphing slowly into the partisan institution we experience today.

For the nearly two postwar decades that Earl Warren presided as Chief Justice, the court pushed the nation insistently to the left, desegregating schools (Brown v. Board of Education, 1954), making bans on interracial marriage illegal (Loving v. Virginia, 1967), affirming the right of married couples to use contraception (Griswold v. Connecticut, 1965), protecting First Amendment rights, especially when it came to press coverage of public officials (New York Times v. Sullivan, 1964) and enshrining the rights of people accused of crimes (Mapp v. Ohio, 1961; Gideon v. Wainwright, 1963; Miranda v. Arizona, 1966).

Miranda, for many Americans, proved a step too far, especially at a time of rising crime. “The court had gone crazy,” many people at the time thought, Baum says. In his 1968 run for the presidency, Nixon singled out Miranda and another Warren Court decision (Escobedo v. Illinois, on the right to counsel) for “seriously hamstringing the peace forces in our society and strengthening the criminal forces,” as he put it in a speech in New York that May. “From the point of view of the criminal forces, the cumulative impact of these decisions has been to set free patently guilty individuals on the basis of legal technicalities,” Nixon said. 

Nixon’s first appointment to the Supreme Court was Warren E. Burger, in 1969, to replace Warren as the Chief Justice. The New York Times reported that Nixon expected him to “do all he could to turn the Supreme Court away from the direction set by his predecessor.”

But Burger would prove a disappointment to conservatives. It was under his tenure that Roe was decided, making abortion legal (Burger himself joined the seven-member majority on that one). Burger Court decisions upheld affirmative action in Regents of the University of California v. Bakke; and, in a coup de grâce for an embattled president, ruled unanimously in United States v. Nixon that executive privilege could not be used to keep documents related to Watergate out of public view. Five years after Nixon nominated him, Burger essentially forced Nixon to resign. 

In the years to come, there would be other disappointments, with other would-be conservatives: Sandra Day O’Connor, Anthony M. Kennedy, David H. Souter. Once they landed on the high court, these justices all took a leftward turn. If they did not become liberals, within a few years on the Supreme Court, they could no longer be called reliable conservatives (Souter arguably became a liberal).. Instead of undoing the work of the Warren and Burger courts, the justices appointed by Reagan and George H.W. Bush seemed to be at least partly enshrining it.

That began to change after Bush v. Gore, with conservatives becoming much more intentional about the judges they elevated to the high-profile appellate courts from which Supreme Court nominations tend to be drawn. “Federalist Society Becomes a Force in Washington,” Thomas B. Edsall reported in The Washington Post in the spring of 2001. 

Four years later, Edsall, now writing with Dana Milbank for NBC News, previewed Bush’s first Supreme Court nomination following O’Connor’s decision to retire. That nominee would be boosted, they wrote, by “a highly coordinated movement that has fused the big dollars of economic conservatives with the grass-roots clout of millions of religious conservatives.”

Bush initially nominated Roberts to fill O’Connor’s seat, but when Chief Justice Rehnquist died and Bush renominated Roberts again, this time for the top spot. Roberts was easily confirmed in a 78-22 vote. It was the old way of doing things, the collegial way of confirming judges, and it would soon come to an end. 

Liberals rejoiced. it was June 2012 and, in a 5-4 ruling, the Supreme Court had just upheld the individual mandate, a key portion of President Obama’s signature Affordable Care Act. And it had been the Chief Justice who wrote the decision. Maybe Roberts was not so conservative after all. “Liberals,” Matthew Cooper wrote in The Atlantic, “may start to think they’ve found their Earl Warren or William Brennan—justices appointed by a Republican president who became liberal icons.”

Two decades later, it is clear just how misguided that hope always was (and Cooper, to his credit, was himself skeptical of the premise). “The idea that [Roberts] is some moderate is not borne out by his record,” Toobin says. The recent presidential immunity decision is obvious evidence for that view, but Toobin also points to Roberts’s involved in the so-called PICS case, which struck down a race-based high school admission plan in Seattle. Then there was his blow to the Voting Rights Act in Shelby County v. Holder in 2013.

But if Roberts was never the Burger-style liberal-in-disguise, his quiet, insistent intelligence also puts him at odds with the openly ideological justices ushered unto the court—with Federalist Society approval—by Trump. It is impossible to believe that Roberts watched Kavanaugh’s melodramatic hysterics before the Senate Judiciary Committee with approval. Roberts and Gorsuch, the first Trump appointee, also seemed to clash, at least early on in their time as colleagues.

The pro-Trump rulings in the immunity and the January 6 obstruction case suggest that the conservatives have won—and Roberts is willing to go along, if not lead them. The term that ended last summer, legal scholar Steve Vladeck wrote in his newsletter, was “one in which the Chief Justice turned, for reasons I don’t fully understand, sharply to the right.” Maybe he was tired of being the institutionalist, the hesitant centrist some conservatives had been starting to mistrust. Or maybe he agreed with Alito and Thomas all along and was just waiting for the right moment to bolt into their camp. “He just kind of seems like a smoother character than a Sam Alito,” former New York Times Supreme Court reporter Linda Greenhouse, now at Yale Law, told Dahlia Lithwick for her “Amicus” podcast. “And I think he certainly manifests more interest in the institutional welfare of the court. But when push comes to shove,” Greenhouse said, Roberts is a staunch conservative. 

Far more surprising was Amy Coney Barrett’s emergence as a sometime swing vote. “Justice Barrett was more likely to join the Democratic appointees than any of the other Republican appointees,” Vladeck wrote in his newsletter, describing her as a vote “to the left” of Roberts.

Refreshing as her independence may be, nobody is expecting Barrett to emerge as an O’Connor-style pragmatist, the sturdy fulcrum on which the entire court is balanced. Feldman, the Harvard professor, says she has displayed “real doctrinal skill” in her opinions but remains “extremely conservative” on many issues.

Climbing to a higher altitude, Feldman contemplates the very notion that Barrett might emerge, of all justices, as a Kennedy or O’Connor-style swing. “A world where someone as profoundly conservative as she would be the swing vote is a pretty astonishing world,” he says.

Early in the first year of his presidency, President Biden appointed a commission of legal experts to conduct an “appraisal of the merits and legality of particular reform proposals.” These included imposing term limits on Article III judges and, controversially, expanding the size of the Supreme Court. “Every constitutional democracy with a high court modeled after ours imposed term limits,” Murray, the NYU professor, says. That should be seen, she believes, as a sign of “the failure of our experiment” with lifetime tenure on the bench. 

The result is a kind of morbid deathwatch of the sort that followed Ginsburg after President Obama failed to persuade her to retire. Now, there are similar concerns about Sonya Sotomayor, who suffers from diabetes. “I consider it to be preposterous that part of my job as a professor of constitutional law is to be highly familiar with the physical health and actuarial life prediction” of the Justices, Feldman told me.

It is not clear if an act of Congress or a constitutional amendment ratified by the states would be required to reform the Supreme Court. It doesn’t really matter, because the combination of thin party majorities and intense political polarization makes either option unfeasible.

Orentlicher, the UNLV scholar, says that the Senate could create a bipartisan nominating commission whose job would be to nominate judges palatable to both parties. “It’s a matter of political will,” he says. There is no evidence that such will exists in Washington today.

“All you can do is get some vacancies to fill and hope that they’re the right vacancies,” says Ohio State’s Baum. In other words, the right judges have to retire or die. And when they do, courts that were liberal will swing conservative, or vice versa. The poles of trust and mistrust will flip, but the fundamental tension will remain.

Today, moderates like O’Connor and Souter may seem out of step. Souter, for his part, hated Washington, and he didn’t always seem to be fond of working on the Supreme Court. A reticent man, he retired in 2009 and returned to New Hampshire, where he lives to this day. Unlike, say, Ginsburg, he gave little to the public, and the public gave him little back. Other than a single Simpsons reference, he has no pop culture profile to speak of. 

In 2010, Souter delivered the commencement address at Harvard. I can sympathize with outgoing seniors who were hoping for something more than a 30-minute course on constitutional law. Then again, the course was good, Souter setting out to puncture the confidence of judges (Scalia, Alito, Thomas) who could without any hesitation say what the authors of the constitution intended, and what their ancient words meant today.

“Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions?” Souter wondered. It was a statement of humility, a vision of judging not predicated on securing certain outcomes that fit perfectly into ideological worldviews.

The court that will start its work next week is imbued with a radical confidence. Even as the presidential candidates squabble, in the final days of the election, over whether J.D. Vance wears eyeliner, the Supreme Court is poised to further accomplish the long-sought goals of the conservative movement. 

And if Trump prevails in this silliest of seasons, it is entirely possible that he could end up with a fourth justice to appoint. A recent Vox article pleaded with Sotomayor and fellow liberal Elena Kagan to retire now, while a Democrat is still in office. Ginsburg had resisted similar pleas during Obama’s second term; Kagan and Sotomayor are showing no signs that they will heed such entreaties. 

Should a future President Trump get a fourth justice, he should also move to emblazon his name on the façade of the Supreme Court, as if it were another property in his glorious portfolio. It would be a fitting end to an institution that had lost its way long ago.