In May, at a gala of the American Law Institute, Associate Justice Elena Kagan had the distinction of presenting Chief Justice John Roberts with the Henry J. Friendly medal, an honor reserved for some of the great jurists of our time—Ruth Bader Ginsburg, Anthony Kennedy, and Merrick Garland are all prior recipients. “The chief is incapable of writing a bad sentence,” Kagan said during her presentation. “His writing has depth, intelligence, crystal clarity, grace, humor, and understated style,” she added. “That writing is, in my humble opinion, the best writing in law. He is a consummate legal craftsman.”
About a month later Kagan was sounding a different tune when dissenting from the chief’s opinion in Biden v. Nebraska, the ruling that invalidated President Joe Biden’s student-debt forgiveness program. Roberts ended that decision, which cut a lifeline for some 43 million borrowers, by lamenting his esteemed colleague’s rhetoric—and what he said was the “disturbing” trend of some justices calling out others for “going beyond the proper role of the judiciary.” That’s judge-speak for lawlessness.
Joined by justices Sonia Sotomayor and Ketanji Brown Jackson, Kagan didn’t back down, suggesting in no uncertain terms that Roberts and his supermajority of six was overreaching for deciding a contested policy issue for a party—in this case the state of Missouri, which had sued the Biden administration—that didn’t even have the right to get into court in the first place. “A court acting like a court would have said as much and stopped,” Kagan retorted. The lawlessness, in her view, was categorical—from the first page to the last. “In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.”
Roberts seemed none too pleased by this charge. “We do not mistake this plainly heartfelt disagreement for disparagement,” he shot back. “It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.”
Kagan is as charming as they come. And speaking to a friendly crowd at Notre Dame Law School a couple of weeks ago, she was asked about what she meant in that testy exchange with Roberts. She didn’t pull punches. “I said that the Court had not acted like a court,” she noted during her remarks. “It is not a pleasant thing to be told that. I mean, when I’m told that by other justices, I don’t like it either.” But she suggested that that’s what judges on the Supreme Court sign up for. “That’s sort of the nature of the business,” she added. The real disturbing thing would’ve been if she had stayed quiet and not sounded the alarm.
This is not the first time Kagan has warned that the Supreme Court needs to act like a court. And luckily for the justices, who couldn’t go one summer with yet more ethics controversies and low approval ratings, the new term that begins this week affords them plenty of opportunities to course-correct—that is, to show the public that they actually care about law, precedent, and making sure their own recent edicts are workable.
In a way, their work is cut out for them, as the bulk of what is shaping up to be yet another buzzy term will be cleanup work from what Ian Millhiser at Vox has called the Trumpiest court in the United States: the US Court of Appeals for the Fifth Circuit. To wit, this is the same court that blessed Texas’s bounty hunter antiabortion law, which the Supreme Court left largely untouched in 2021, and that gave us Dobbs v. Jackson Women’s Health Organization, the Mississippi case that ended half a century of abortion protections. The Fifth Circuit is also responsible for the third and final existential challenge to the Affordable Care Act, which the Supreme Court correctly batted down in 2021.
This time around, no fewer than five cases stemming from that court are already on the docket or awaiting action, all of them with untold stakes for the US economy, for people’s freedoms, and for our collective sense of safety.
First up this week is a truly bonkers challenge to the integrity of the Consumer Financial Protection Bureau, which Congress created in the wake of the 2008 financial crisis to prevent future, similar crises. Among other tools to keep the economy in check, lawmakers insulated the agency from political interference by letting the Federal Reserve rather than the annual appropriations process be its source of funding. Unhappy with regulations promulgated by the CFPB, the payday lending industry went to court and argued that this funding was unconstitutional. And the Fifth Circuit, in an opinion that was as radical as it was unmoored from historical practice, held that this funding structure violated the Constitution’s appropriations clause. Yet as Elizabeth Prelogar, the Biden administration’s top Supreme Court lawyer told the justices in a filing, this ruling has no precedent in history. And worse, following the Fifth Circuit’s logic would cause “significant disruption on the Nation’s economy and the consumers, financial institutions, regulators, and others who have reasonably relied on the CFPB’s past actions.”
If that seems like a good candidate for the Supreme Court to reverse, the justices may have a harder time with United States v. Rahimi, a follow-on to their blockbuster 2022 ruling that expanded the scope of the Second Amendment. This recent landmark, in which Justice Clarence Thomas said that firearms regulations must have a close historical analogue to be constitutional, has caused chaos and confusion in the lower courts. And the Fifth Circuit, applying this new history-and-tradition test, added to this noise by determining that a federal law that allows the government to temporarily disarm people who pose a threat of domestic violence should be struck down. The irony of this case, as Prelogar again reminded the archconservative court, is that domestic violence, let alone the status of women, has not been taken seriously for much of our nation’s history. Do the justices really want to subject families and households to the risk of gun violence with a wooden application of a new legal test that many federal judges are having a hard time applying?
If that weren’t enough, just on Friday, the Supreme Court agreed to take up the constitutionality of a pair of laws, one from Florida and the other one from Texas, that would severely limit how social media companies regulate the content users post on their platforms. Much like politicians’ concerns over Section 230, the backbone of the modern internet, these cases arose when Republican legislators in the two states sought to rein in the likes of Facebook and X and their supposed censorship of conservative views and users. The platforms swiftly challenged the laws as a violation of the First Amendment, contending that the government can’t tell private actors, as one court put it, “what to say or how to say it.” But the Fifth Circuit—surprise—rejected the idea that content moderation is a form of protected speech, falling instead hook, line, and sinker for the notion that tech companies are silencing conservatives on social media. Yet another mess, deeply entwined with the culture wars, for the Supreme Court to clean up.