This is what happens after four years under an insurrectionist president. It will get much worse if he gets eight.
Justice Samuel Alito. Alex Wong/Getty Images Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
Former President Donald Trump’s four years in the White House were, in many ways, a revolution interrupted. They transformed the federal judiciary and led to the fall of Roe v. Wade, the end of many gun laws, and a sweeping transfer of power away from the elected branches of government and toward a Republican-controlled judiciary.
Yet while Trump’s single presidential term remade much of US law, it did not allow the judiciary’s most reactionary elements to declare total victory.
This June the Court will likely hand several high-profile defeats to the conservative movement. Even this Court is unlikely to ban the abortion drug mifepristone, for example. It’s also likely to reject a decision, by three Trump judges, which threatens to trigger a second Great Depression.
While there is daylight between the median justice on the Supreme Court and the most reactionary minds on lower courts, US democracy is still in extraordinary peril. The Court has thus far tripped over itself to protect Trump from any criminal consequences for his attempt to overthrow the 2020 election, and the unelected justices are widely expected to transfer a tremendous amount of policymaking authority to themselves, at the expense of the two elected branches of government.
The federal courts, in other words, are increasingly anti-democratic and increasingly eager to consolidate power within themselves, but not nearly as anti-democratic as they will become if Trump gets to appoint more judges.
Below is a list of nine cases that represent the very worst work the federal judiciary has produced since Trump left office. These are not simply cases that are wrong or harmful to many Americans, they are cases that are fundamentally at odds with the idea that the United States is a constitutional democracy, with a government that is simultaneously bound by written legal texts and fundamentally accountable to the American people and not to an unelected oligarchy.
These cases also highlight specific problems within the judiciary, such as the extraordinary steps many judges have taken to protect Trump, or the fact that many judges and justices have abandoned the judiciary’s longtime commitment to free speech.
Although many of these cases are likely to end in defeat for the far-right litigants behind them, the list represents how much American law has changed since Trump started to remake the judiciary and how much more it could change if he gets another chance to appoint judges and justices. Fringe ideas that today enjoy only minority support within the courts could soon garner five votes on the Supreme Court — and that includes ideas that are at odds with the notion of government of, by, and for the people.
These nine cases, in other words, are as much a warning about America’s potential future as they are a window into the present state of the law.
1) Whole Woman’s Health v. Jackson: The abortion bounty hunter case
Whole Woman’s Health v. Jackson (2021) isn’t just one of the worst Supreme Court decisions of the post-Trump era, it’s one of the worst decisions in the Court’s history. If taken seriously, its reasoning would allow any state to neutralize any constitutional right.
Decided months before the Court overruled Roe v. Wade, the case involved SB 8, a Texas law that relied on a very unusual mechanism to ban nearly all abortions in that state. Under SB 8, any person other than an employee of the state of Texas could bring a private lawsuit against an abortion provider. There was no limit on the number of lawsuits that could be filed, and the first plaintiff to prevail in a suit claiming that the provider performed “an abortion after the sixth week of pregnancy” would collect a bounty of at least $10,000 from the defendant.
There was also no limit to this bounty, so a court could potentially order every abortion provider in the state to pay millions of dollars, and that’s on top of the legal fees the provider would have to pay defending against dozens or even hundreds of lawsuits.
Jackson ruled that Texas abortion providers could not file a federal lawsuit seeking to block this law before it was brought to bear against them. Instead, they had to violate the law, wait to be sued — again, potentially by hundreds of different plaintiffs — and then pay a small army of lawyers to defend against all of those suits. Thus, even if an abortion provider successfully convinced a court to declare SB 8 unconstitutional, the provider still risked bankruptcy in the process.
If taken seriously, Jackson’s reasoning would allow any state to neutralize any constitutional right. Imagine a state law permitting SB 8-style bounty hunters to sue anyone who criticizes the governor, or one allowing suits against any Black family that sends their child to a white-majority public school.
2) Arkansas State Conference NAACP v. Arkansas Public Policy Panel: An existential threat to the nation’s most important voting rights law
The Voting Rights Act of 1965 is arguably the most successful civil rights law in US history; it broke Jim Crow barriers to Black voting rights in the South. It’s also fared very poorly in front of this Supreme Court, which has neutralized at least one key provision of the law and narrowed other provisions in ways that cannot be squared with the law’s text.
But the United States Court of Appeals for the Eighth Circuit’s decision in Arkansas State Conference NAACP v. Arkansas Public Policy Panel (2023) comes just inches away from repealing this landmark law in its entirety, making it the worst voting rights opinion in an era marred by terrible voting rights decisions.
The Arkansas opinion, authored by Trump Judge David Stras, would strip private parties of their ability to file suits enforcing the law — a law which has been understood for pretty much its entire existence to allow such suits to move forward. In this way, Stras’s Arkansas decision closely resembles the Court’s decision in Jackson: It seeks to neutralize an important civil right by preventing the courts from enforcing that right.
The reasoning underlying Stras’s decision is quite complicated, though if you care to read an explainer on how he reached his conclusion and why that conclusion is wrong, I wrote that explainer here.
Under Stras’s approach, only the Justice Department may file suits seeking to enforce the Voting Rights Act — the primary law prohibiting race discrimination in US elections. But the DOJ lacks the resources to police every voting rights violation in the country. And even if it had unlimited resources, it’s unlikely to do much at all to enforce the law during Republican administrations. During the Trump administration, the DOJ’s voting section brought only one lawsuit alleging discrimination under the Voting Rights Act, and that was a minor suit involving a South Dakota school board.
It is likely that Stras’s attempt to neutralize this law will prove too much, even for the current Supreme Court. Only two justices, Clarence Thomas and Neil Gorsuch, have previously shown any sympathy for Stras’s reasoning. Still, Stras’s opinion could easily become law in all 50 states if Trump appoints more justices to the Supreme Court.
3) Trump v. United States: The Aileen Cannon special master debacle
Aileen Cannon has become a household name among the set that closely follows the many civil and criminal legal proceedings against Donald Trump. For everyone else, Cannon is a Trump appointee presiding over his criminal trial for deliberately retaining classified documents after his presidency ended. She has consistently handed down rulings that suggest she also seems to think she’s a member of the former president’s defense team.
Among other things, she recently put Trump’s classified documents trial on hold indefinitely, citing a backlog of motions that she’s been unable to resolve in a timely manner. This is an enormous gift to Trump, who hopes to delay his federal criminal trials until after the election — when he may be able to order the Justice Department to drop the charges against him.
The earliest sign that Cannon wasn’t up to the task of fairly presiding over one of the most significant criminal prosecutions in American history came shortly after the FBI executed a search warrant that uncovered more than 100 classified documents at Trump’s home in Florida.
Like any other criminal defendant, Trump enjoys certain constitutional protections. His home cannot be searched unless the FBI had probable cause to believe that such a search would uncover evidence of a crime. And it must obtain a warrant issued by a neutral magistrate before the search may occur. No one seriously contests, however, that the FBI complied with these requirements.
Nevertheless, Cannon concluded that Trump is entitled to additional protections not afforded to any other criminal suspect, in part because of Trump’s “former position as President of the United States.” She then ordered the criminal investigation into Trump’s possession of the classified documents to be put on ice until an official known as a “special master” reviewed the documents.
An appeals court panel that included two Trump appointees plus Chief Judge William Pryor, a prominent figure in the conservative Federalist Society, eventually smacked down Cannon’s move — labeling her special master decisions “a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations.” But, despite her incompetence and likely bias, Cannon continues to preside over Trump’s criminal trial, one that may never happen because of that very incompetence and bias.
4) Alliance for Hippocratic Medicine v. FDA: The mifepristone case
Another Trump-appointed judge you might have heard of is Matthew Kacsmaryk, a former lawyer for Christian right causes with a long history of hostility toward abortion, birth control, homosexuality, and even most forms of heterosexual sexuality.
Because of a quirk in how Kacsmaryk’s Texas federal court assigns cases to judges, any case filed in Amarillo, Texas, automatically lands in Kacsmaryk’s courtroom. As a result, right-wing litigants routinely make a pilgrimage to Amarillo to obtain legally indefensible court orders implementing policies favored by the rightward fringes of the Republican Party. (A governing body within the judiciary has tried to end this practice of “judge-shopping,” but Kacsmaryk’s court has thus far refused to comply with those efforts.)
The most well-known of these court orders is a 2023 decision in which Kacsmaryk attempted to ban the abortion drug mifepristone, a medication used in nearly two-thirds of all US abortions that has been legally available in the United States since 2000. The Supreme Court temporarily blocked Kacsmaryk’s attempt to ban the drug and is widely expected to toss out the case later this year.
One reason why even this anti-abortion Supreme Court may be unwilling to tolerate Kacsmaryk’s move is that, if his decision is upheld, it endangers Americans’ access to countless other medications. If judges can second-guess the Food and Drug Administration’s decision to approve a drug, especially based on the spurious objections raised by Kacsmaryk, thousands more drugs could be pulled from the market.
Kacsmaryk’s opinion was also stunningly inept. Among other things, he relied on two discredited studies that have since been retracted by their publisher, and he cited another “study” that collected “data” entirely from anonymous blog posts published on an anti-abortion website.
Kacsmaryk, in other words, is very much an outlier even in a judiciary dominated by conservative Republicans. Should Trump prevail in November, however, he could fill the bench with people just like this Texas judge.
5) Doe v. Mckesson: The anti-free speech wing of the federal judiciary lashes out at the right to protest
The Fifth Circuit is a recurring villain in any saga about the post-Trump judiciary. Dominated by Trump appointees and other MAGA allies, this court, which oversees all federal cases arising in Texas, Mississippi, and Louisiana, is a major reason why judges like Kacsmaryk thrive in these three states. Far-right trial judges in the Fifth Circuit receive very little adult supervision unless their decisions are reviewed by the justices, and more moderate trial judges in the Fifth Circuit often have their decisions torn apart by partisan goons.
One area where the Fifth Circuit has been particularly aggressive is the First Amendment. Before Trump, there was a bipartisan consensus that speech of all kinds is protected by the Constitution, regardless of who it offends; the Supreme Court handed down a couple of 8-1 decisions in the early 2010s driving this point home.
On the high Court, the pro-free speech majority has shrunk to 6-3. But in the more reactionary Fifth Circuit, its judges often apply vastly different rules to liberal and conservative speakers. Among other things, the Fifth Circuit ruled that Republican lawmakers in Texas may seize control of content moderation at the major social media sites, while also ruling that the Biden administration is forbidden from even asking social media outlets to remove content that promotes terrorism or that spreads false health information.
The worst example of the Fifth Circuit’s partisan approach to free speech is Doe v. Mckesson, a decision that effectively eliminates the constitutional right to organize a mass protest.
In Mckesson, the Fifth Circuit ruled that a police officer who was injured when a protest attendee threw a rock could sue the organizer of that protest. This decision contradicts a Supreme Court case that is directly on point, NAACP v. Claiborne Hardware (1982), which held that protest leaders cannot be held liable for the actions of individual protest participants, absent unusual circumstances such as if the leader “authorized, directed, or ratified specific [illegal] activity would justify holding him responsible for the consequences of that activity.”
Mckesson is such a severe blow to the right to protest because no one in their right mind will organize a mass event of any kind if they know they can be held legally responsible for illegal acts committed by any attendee. And there truly is no way to justify the Fifth Circuit’s Mckesson decision under Claiborne Hardware.
Yet, while the Supreme Court has not affirmed the Fifth Circuit’s Mckesson decision, it also recently turned away a request to review (and reverse) the lower court’s error in this case. So, while a majority of the justices have not yet embraced the Fifth Circuit’s anti-free speech stance, they’ve been surprisingly tolerant of it. And the Court’s pro-free speech majority is only two Trump appointees away from breaking.
6) Community Financial Services Association v. Consumer Financial Protection Bureau: The Fifth Circuit flirts with a second Great Depression
Speaking of the Fifth Circuit, that court recently declared an entire federal agency unconstitutional. It did so by simply making up a new, unwritten constitutional limit on Congress’s power to spend money. And, in the unlikely event that the Supreme Court affirms the Fifth Circuit’s decision, that risks the worst economic catastrophe since the Great Depression.
Briefly, the Fifth Circuit’s decision in Community Financial Services Association v. CFPB imagines that the Consumer Financial Protection Bureau is constitutionally problematic because of its “perpetual funding mechanism” — meaning that the agency has a permanent stream of federal funding and does not shut down if Congress fails to appropriate new money in any given year.
The idea that Congress cannot fund a government institution in perpetuity is completely made up. Nearly two-thirds of all federal spending is perpetual, including spending on programs such as Social Security, Medicare, and Medicaid.
Perhaps recognizing that the nation would revolt if the courts tried to abolish Social Security, after announcing this novel new limit on federal spending, the Fifth Circuit immediately tried to cabin it. The unique problem with the CFPB, Trump Judge Cory Wilson wrote, isn’t just that it receives perpetual funding. It is that this funding first passes through another agency, the Federal Reserve, before landing in the CFPB’s bank account.
This claim that an agency’s funding somehow becomes more constitutionally suspect if it passes through a different entity is also completely made up.
Even this more limited application of the Fifth Circuit’s make-believe Constitution would lead to disaster. As a brief filed by the banking industry explains, the CFPB doesn’t just regulate that industry, it also provides the industry with instructions on how it can comply with federal lending laws without risking legal sanction — establishing “safe harbor” practices that allow banks to avoid liability so long as they comply with them.
If the CFPB were to suddenly cease to exist, in other words, banks will have no idea what rules they need to comply with in order to issue loans. Moreover, because home building, home sales, and similar industries that depend on the mortgage market make up about 17 percent of the US economy, a decision eliminating the CFPB could cause nearly a fifth of the nation’s economy to dry up overnight.
The good news is that most — though not all — of the justices appear likely to put an end to this madness. But that doesn’t change the fact that some of the most powerful judges in the country thought it was their job to light a simply enormous segment of the US economy on fire.
7) Biden v. Nebraska: The student loans case
Another judicially created legal rule, and one that has already been embraced by the Supreme Court, is the “major questions” doctrine, which limits which policy decisions can be made by federal agencies. As the Republican justices who invented this doctrine describe it, the Court requires “Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
Like the Fifth Circuit’s idea that “perpetual” funding laws are constitutionally suspect, this major questions doctrine appears nowhere in the Constitution or in any statute. It is a very recent invention, which has largely been used by Republican appointees on the Supreme Court to invalidate policies created by Democratic administrations — and especially by the Biden administration.
The worst example of the Court’s major questions decisions is Biden v. Nebraska (2023), the decision striking down the Biden administration’s student loan forgiveness program.
Reasonable minds can disagree on whether canceling student loans was the best use of the federal government’s resources, but there should have been no doubt of the program’s legality under a federal law known as the Heroes Act. That law gives the Secretary of Education sweeping authority to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs … as the Secretary deems necessary in connection with a war or other military operation or national emergency,” including an emergency like the Covid-19 pandemic.
Indeed, the Heroes Act does far more than give the secretary this power. It explicitly removes procedural hurdles that federal agencies ordinarily must clear before they can change government policy. It states that the secretary may dole out student loan relief en masse. The law even permits the secretary to exercise their authority “notwithstanding any other provision of law, unless enacted with specific reference to” the Heroes Act.
Thus, even if Congress had passed a law that expressly forbids that secretary from creating a program like the Biden administration’s student loan program, the program would still be legally valid unless that law also contained a provision stating that it overrides the Heroes Act.
So, even if you treat the major questions doctrine as legitimate — that is, even if you accept that Congress must “speak clearly” in order to authorize a significant student loan forgiveness program — the Biden administration’s program should still have survived judicial review. How could Congress have possibly spoken more clearly than it did in the Heroes Act?
More broadly, the Nebraska decision exposes a Supreme Court that is willing to simply ignore the text of the law altogether in order to achieve policy goals it views as sufficiently important.
8) United States v. Texas: Who controls law enforcement?
In 2021, Secretary of Homeland Security Alejandro Mayorkas issued an innocuous memo instructing Immigration and Customs Enforcement (ICE) officers to prioritize enforcing immigration law against undocumented immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.” Mayorkas’s memo closely resembled similar memorandum setting enforcement priorities in 2005, 2010, 2011, 2014, and 2017.
It was also clearly authorized by a federal law which states that the homeland security secretary “shall be responsible” for “establishing national immigration enforcement policies and priorities.”
Nevertheless, because Texas federal courts often allow litigants to choose which judge will hear their case, the Republican attorneys general of Texas and Louisiana selected Drew Tipton, a Trump judge with a history of anti-immigrant rulings, to strike this memo down.
Tipton’s decision, which effectively seized control of the Biden administration’s authority to set the priorities of a law enforcement agency, was legally indefensible for a whole host of reasons, and the Supreme Court eventually reversed Tipton in an 8–1 decision.
As a practical matter, Tipton’s suggestion that the government cannot set enforcement priorities was unworkable. As the Justice Department explained in a 2014 memo, “there are approximately 11.3 million undocumented aliens in the country,” but Congress has only appropriated enough resources to “remove fewer than 400,000 such aliens each year.” So someone had to decide how ICE focuses its limited resources, and Congress decided that this decision should be made by Mayorkas and not Tipton.
More broadly, Tipton’s decision removed an important limit on the government’s power to make arrests or otherwise exercise force. Though the power to adjudicate whether a particular individual violated the law often rests with judges, the power to make arrests, bring enforcement actions, or seek an official penalty normally rests with the Executive.
That means that all three branches typically must agree that a particular individual should be arrested and tried before such an arrest can take place. Congress must pass a law making a particular action illegal. The Executive must decide to enforce that law against a particular individual. A judge or some other adjudicative body ordinarily must determine that the individual broke the law.
By placing himself in charge of a law enforcement agency, however, Tipton eliminated one of these safeguards, effectively allowing the judiciary to act both as law enforcer and adjudicator. It’s not hard to imagine how certain judges — perhaps Tipton himself or someone like Kacsmaryk — could abuse this power.
9) New York State Rifle v. Bruen: The Court’s completely unworkable Second Amendment decision
Many of the Court’s Republican appointees claim to be “originalists,” meaning they believe that the Constitution must be interpreted as it was originally understood when it was drafted or ratified. But if these justices actually intended to discredit originalism as a method of judging, they would have written a decision much like New York State Rifle & Pistol Association v. Bruen (2022).
Bruen held that, for virtually any gun law to survive a Second Amendment challenge, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” This means that lawyers defending gun laws must show that “analogous regulations” also existed and were accepted when the Constitution was framed, particularly if the law addresses “a general societal problem that has persisted since the 18th century.” If they cannot, the challenged gun law must be struck down.
This approach makes no sense for a whole host of reasons. Even if you agree with the originalist view that the Constitution must mean the same thing today as it did in the 1790s, the fact that a particular gun law did not exist more than 200 years ago does not mean that the generation that framed the Constitution would think it unconstitutional.
Among other things, early America did not have police forces until the early-to-mid 1800s, so the government lacked the state capacity to enforce the kind of gun laws that exist today. Early America also did not have large cities like the ones that exist today — New York City had only 33,131 residents in the 1790 census — so we simply have no idea how the framers would have dealt with the problem of guns in a modern urban setting.
Judges have struggled so much to apply Bruen that many of them complain about how unworkable the decision is in their published opinions. By announcing “an inconsistent and amorphous standard,” wrote Judge Holly Brady, a Trump appointee to a federal court in Indiana, “the Supreme Court has created mountains of work for district courts that must now deal with Bruen-related arguments in nearly every criminal case in which a firearm is found.” And Brady’s hardly the only judge with such complaints.
Bruen has also led to ridiculous and immoral results, such as a Fifth Circuit decision holding that people subject to domestic violence restraining orders — meaning that a court determined that they are a violent threat to others — have a right to own a gun.
In any event, the Supreme Court appears likely to reverse that Fifth Circuit decision. It should go further and confess that it made an egregious error when it handed down Bruen and that the decision must be overruled.
These cases are a mix of legally indefensible outcomes that have already been imposed on the entire nation and potentially disastrous lower-court decisions that will most likely be reversed by the current Supreme Court. Trump transformed the federal judiciary, but he has not yet turned it into a playground where MAGA bullies can take whatever they want.
The rule of law cannot survive long, however, in a nation whose leaders do not embrace it. In a hypothetical second Trump term, judges like Kacsmaryk or his enablers on the Fifth Circuit are likely to thrive, and could eventually dominate the Supreme Court.
Sourse: vox.com
