The Central Myth That the Supreme Court Wants You to Believe

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For years now, the question I have been asked most frequently by those who despair at the debatable loyalties and generalized recklessness of the John Roberts court has been some version of this: “But what can we do about it?”

This was the question back when the Supreme Court granted billionaires the ability to influence our elections as they saw fit in the 2010 Citizens United case. It was the question again in 2013, after the court decided, in Shelby County , that the key component of the Voting Rights Act that had been working to protect minority voters for nearly 50 years was no longer necessary. It was the question again in 2022, when SCOTUS struck down the constitutional right to an abortion in Dobbs . It was the question back when President Barack Obama was in office, and again when President Joe Biden and Democrats held both branches of Congress, and again when a blue-ribbon independent commission made a whole bunch of suggestions about court reforms.

It is the question people are asking with renewed dismay in the past 18 months, during which the six conservative justices on the court have handed insurrection-enthusiast candidate Donald Trump near-total immunity from criminal prosecution , made it impossible to remove him from the Colorado ballot for insurrection , and hobbled federal court judges' ability to stymie lawless actions taken by the now president. It is the question being asked by those who are coming to realize that the Roberts Six are unerringly and increasingly blessing Trump's power grabs, often on the court's emergency docket and that there appears to be no means of stopping them from doing so.

For years now, whenever I have been asked the question of “What can we do about it?,” my answer has been to tell people that it is to do the thing you learned the first time you went camping and heard about the possibility of bears: Be bigger than you are . The point here was not to raise your arms and growl at the Supreme Court, but to signal, in any way that makes sense to you as a citizen, that you were bearing witness, writing op-eds, protesting, organizing, supporting legislation to correct court overreach , and just generally using the lawful tools available in any democracy to signal that the courts—while immune from some kinds of outside influences—are not also exempt from public opinion and public opprobrium. If the high court's sole authority derives from broad public acceptance, then by definition the court's power is diminished when that acceptance is broadly withheld.

I was struck last week, listening to a friend, professor Melissa Murray, make the observation that this court is in the midst of deploying the bear rule itself. (For her metaphor, she used the tiny red panda, with its remarkable ability to seem big when it's not .) In her version, the court was doing everything possible this past term to appear more powerful than it is. How else can you explain cases decided without any reasoning on the shadow docket ? How else can you explain a court that consistently arrogates to itself the power to overturn precedent, ignore statutory requirements, sideline federal judges, and trammel congressional authority? And if it is, in fact, true that the Supreme Court is at present attempting to puff itself up to appear far larger than it actually is, while the American public, where actual power inheres, is persistently unwilling/unable/too terrified to attempt to assert any power over the courts, then we are actually witnessing the weirdest bear-off imaginable.

In order for democracy to work, we have been told, it is our function to pay no attention to the man behind the curtain. The great and powerful Oz, though, is precisely as powerful as our willingness to suspend disbelief that something that sits by design in front of a curtain is perfect, godlike, and omnipotent. And despite years and years of accumulated evidence to the contrary—the fishing trips financed by big donors , the failure to disclose big gifts , the upside-down flag , and the seats stolen under a pretext and then stolen again, under a different pretext —the easiest choice seems to be to shrug and say that it would be destabilizing to democracy to keep refusing to pay attention to the man behind the curtain, long after it is clear that refusing to pay attention to the man behind the curtain is destabilizing whatever is left of democracy.

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In short: It's a fiction that the court is untouchably powerful. And now, more than ever before, the high court is pretending to be omnipotent when it's not; it's all just green smoke, cracked mirrors, and big words. (As Chief Justice John Roberts once said on C-SPAN : “The most important thing for the public to understand is that we are not a political branch of government. They don't elect us. If they don't like what we are doing, it's more or less just too bad.”) whereas the electorate for which the court actually works has rendered itself smaller than it actually is. The panda wins by virtue of the puffery and power grab.

But that's not the end of it. Because of course what the Roberts court has been engaged in—in some form for decades, but this past year like someone on crack—is a slow but inexorable campaign to make the presidency bigger than it is. Purists can call it the unitary executive, but in actual practice it is a solitary, deranged president telling us every day that he decides everything, from the recipe for Coca-Cola to the names of professional sports teams , to basic geography and national immigration law. But what notionally stands between his efforts to be the Great and All-Powerful Donald and actual executive power is a Supreme Court that keeps blessing these efforts to assert all the power, and a conservative supermajority that stands by silently as the administration flouts lower-court orders with impunity . And what stands between John Roberts and his claim to be the man behind the man behind the curtain is the American public.

We keep talking about an imperial court that is slowly but certainly constructing an imperial executive, but none of that can happen without the learned helplessness of an American public that was intended to be sovereign.

What would it mean for each of us to try to be bigger than we are, in this fraught moment, in the manner of red pandas or even mere sovereign citizens? It surely demands some combination of showing up in person, supporting good candidates, running for office, working locally, and generally measuring influence in terms of actual outcomes and quantifiable democratic wins. It ultimately means reaching toward structural political fixes and democratic reforms, all the sorts of things that require one to be extremely offline, very pissed off, and very busy all the time. What it emphatically cannot mean is acceding to powerlessness in the face of a bunch of institutions that are working to make it seem as if their omnipotence is inevitable, or irrevocable, or constitutionally overdetermined.

Both this president and this court have achieved mastery of manipulating the appearance of being bigger than they are, and bigger than they were ever designed to become. But the decision to accept this as true is a ceding of ground that is not inevitable, or irrevocable, or constitutionally overdetermined. Railing about powerlessness is a luxury we might want to save for the moment—should it ever fearfully arrive—in which we have truly got no power left to assert.