The masks are slipping at the Supreme Court.
Last week, two revelations peeled back the institutional facade of the Roberts Court and exposed what many Americans have long suspected: our Supreme Court has been captured by partisans who are using its unaccountable power to reshape the country in the image of the Trump-Republican Party.
The first revelation came from the stunning reporting of The New York Times, which obtained secret memos from inside the Court. The memos tell a behind-the-scenes story that is both depressing and infuriating.
These documents—which the Times made public in what is arguably the biggest scoop in SCOTUS history—shatter the carefully maintained legend of Chief Justice John Roberts as a sober institutionalist, a guardian of judicial independence, a man of caution and care. The memos show a different Roberts—not a referee calling balls and strikes, but a bulldozer in a black robe.
In 2016, a huge environmental issue came before the Court. President Obama’s Clean Power Plan sought to reduce carbon emissions in America by way of an executive order, issued by Obama under the provisions of the Clean Air Act of 1990.
Roberts wanted to kill it. Fair enough—justices might want to do all kinds of things, and Obama’s executive order launching the Plan stood on contested legal ground. But Roberts faced a “problem” in his drive to block Obama’s initiative, and that problem was time. Roberts wanted to move fast. Courts move slowly—for a reason.
Cases percolate upwards to the Supreme Court. A plaintiff or petitioner believes an injustice has been done, and the system gets to work on it. It’s fascinating to watch criminal and civil cases develop and deepen, as evidence is adduced, assessed, and ruled upon by the district courts, and then as arguments, historical research, and varieties of legal approaches are sifted in the appellate courts. The process reveals the issues at stake in fine detail and in multiple dimensions.
But it does take time. As the old saying goes: “The wheels of justice grind slowly, but they grind exceeding small.” Meaning: The justice system moves at a slow pace, but it is thorough, sure, and precise.
To that, Roberts had an answer, behind the scenes: Screw it. Let’s kill this thing now. Take a vote, issue a ruling (call it “preliminary,” but make sure the thing is dead). No hearing. No lower courts. No sworn testimony. No expert witnesses. No legal arguments. No briefs. No research. No opinion explaining why we’re killing it. Just the muscle of the conservative majority. Do. It. Now.
We’ve become accustomed over the past ten years to this kind of peremptory resolution of major cases at the Court. It’s become known as “the shadow docket,” because the justices dispose of cases in the shadows, by ruling on “emergency applications” behind the scenes—and they do it more and more. But back in 2016, it was almost unheard-of in a major policy case like this one.
When his colleagues on the Court warned him that he was proposing an unprecedented move to halt the Clean Power Plan through the shadow docket, Roberts was dismissive. He pushed it through anyway. Just two weeks after West Virginia filed an emergency request challenging the Clean Power Plan, the conservative majority killed Obama’s signature environmental policy. “This had never been done,” acknowledged one lawyer on the winning side.
But it would be done again. And again. Roberts had inaugurated a new era of radical judicial activism on the Court. The shadow docket, once reserved for genuine emergencies, has since become a routine instrument for handing Donald Trump victory after victory to pursue his agenda—firing federal workers, banning transgender service members, and more—all through unsigned orders from the Court with minimal explanation. John Roberts had crafted a new weapon for judicial supremacy in America. His partisan conservative caucus on the Court now fires it at will.
Then there is Clarence Thomas.
Last Wednesday, the senior Associate Justice of the United States Supreme Court delivered an hour-long address at the University of Texas law school that can only be described as a political speech.
Thomas declared that progressivism, which he traced to Woodrow Wilson, is fundamentally incompatible with the Declaration of Independence—and warned darkly that the two cannot coexist forever. He linked progressivism to Stalin, Hitler, Mussolini, and Mao. Anyone to the left of Grover Cleveland, it seems, is a threat to the Republic.
The history was fiction. The intent was not. Thomas castigated those in Washington who “fall prey to the enchanting siren songs of flattery” and are “enticed by access to things that were previously unavailable to them.”
He delivered this sermon in the presence of Harlan Crow—the GOP megadonor who spent two decades showering Thomas with luxury yacht trips, a portrait at Yale, and seed money for his wife’s political operation, most of it hidden from public disclosure.
Thomas’s audacity is breathtaking. His cynicism is complete. The man is bought and paid for. Harlan Crow, sitting there listening, knew he’d got his money’s worth.
Roberts poses as an institutionalist while secretly engineering the Court’s transformation into a political instrument. Thomas rages against corruption while his patron sits in the front row.
What Americans feared is now confirmed. Their Supreme Court—lifetime appointments, no elections, no meaningful ethics enforcement—is in the hands of men who see it not as a temple of justice but as a lever of power.
The masks are off. The question now is what we intend to do about it.
—Terry