Unrestrained.

This is the final part of a series examining the Supreme Court in light of its recent, radical rulings. Today’s topic is “judicial restraint”—the idea that the Court should exercise limited power, constrained by principles we have discussed like stare decisis and standing, and not act as an unelected legislative body.

Illustration by Hokyoung Kim

Among the most notable new features of Chief Justice John Roberts’s Court is a willingness to insert itself into matters traditionally reserved to the legislative or executive branches, substituting its own judgment for that of Congress or federal agencies.

This is a particularly troubling development for any democracy. Our system is supposed to function by way of majority, elected rule—and not via edicts from a star chamber. Interference in the legislative or executive process is rightfully viewed by many as a power grab, especially when the Court’s decisions are doing the heavy lifting for the party out of power. It is a form of minority rule, and it is antithetical to democratic principles.

I want to look at two examples during this latest term of this power grab and its newly minted judicial activism, by what once styled itself as a “conservative” court majority. We’ll look first at the Court’s decisions challenging the power of the EPA to regulate wetlands, which may have far-reaching and long-lasting detrimental, environmental effects. Then we’ll look at how the Court reversed the Biden White House on student debt forgiveness, which will most impact lower income student borrowers. 

Both grabs involve the invocation of doctrines that simply didn’t exist until recently. As I’ll discuss below, these new doctrines give the Court enormous latitude to limit the authority of Congress and of federal agencies.

The “exceedingly clear language” rule

In a major blow to environmental protection, with a narrow 5-4 split over which rule to apply, the majority in Sackett v. EPA endangered some 90 million acres of wetlands formerly under the jurisdiction of that agency by second guessing Congress and regulators on what actually constitutes a wetland.

If you find it disturbing that the justices, who are not scientists, let alone environmental experts, are making this decision, you are not alone. Traditionally, they have deferred such matters to the experts, but we are in an age where everyone thinks they are one, apparently.

Writing for the majority, Justice Samuel Alito held that the Clean Water Act does not allow the EPA to regulate discharges into wetlands near bodies of water unless those wetlands have “a continuous surface connection” to that water. That affects about half the nation’s wetlands.

The decision was the second big blow to conservation and climate action by the Court. It also makes no sense from a scientific point of view, according to experts from the EPA. Water doesn’t care about continuous surface connections, and neither do pollutants.

Justice Elena Kagan connected the decision to one during the prior term where the Court had similarly overruled the EPA on emissions:

There, the majority’s non-textualism barred the E.P.A. from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the E.P.A. from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the court’s appointment of itself as the national decision maker on environmental policy.

Specifically, Kagan was criticizing the reading by the Court of the Clean Water Act, specifically its coverage of wetlands “adjacent” to waters of the United States. What does “adjacent” mean here, and who gets to decide that?

“‘Adjacent’ and ‘adjoining’ have distinct meaning,” Justice Brett Kavanaugh wrote in rare agreement with the liberals. “There is a good reason why Congress covered not only adjoining wetlands but also adjacent wetlands. Because of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes and other waters.”

Justice Kagan made the textual point even more clearly. "In ordinary language,” she wrote, “one thing is adjacent to another not only when it is touching, but also when it is nearby. So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separate the two.”

But Justice Alito tut-tutted his way to a majority, arguing that based on an earlier decision, Congress must use “exceedingly clear language” whenever it wanted to “significantly alter” things like the balance between federal and state power or the power of the government over private property.

The thing is, this “exceedingly clear language” rule is something entirely made up by the Court radicals. If they get to decide what is “exceedingly clear” and what is not, rather than leaving that to the discretion of the federal agency or deferring to the intent of Congress, this allows them to twist the words any which way they want, even over a law that was passed 50 years ago and has been operating under a common assumption since.

Kagan accurately described the clear language requirement as a “pop-up” rule that was a “reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation.” She continued, “It is an effort to cabin the anti-pollution actions Congress thought appropriate.”

The willingness of the Court to weigh in on anything that it believes “significantly alters” the balance of power in government, simply by parsing language using an ad hoc “clear statement” rule, invites a great deal of mischief. The right is now salivating over what other major legislative or administration accomplishments it can roll back, simply by pointing to an ambiguity that it can get at least five right wingers on the Court to entertain.

The “major questions” doctrine 

At the very end of this term, the Court sprang another doozie, deploying another invention called the “major questions” doctrine to overturn President Biden’s debt relief plan for lower income student borrowers.

According to Chief Justice Roberts, if the Executive wants to do something that seems really big and meaningful, then the Court has the power to check that by claiming Congress never intended it—even if the literal language of the law shows that it did. This creates an astonishing pretzel-like argument for a “conservative” majority that has long rationalized its regressive decisions on the plain text of the law.

In Biden v. Nebraska, the Court held that the Secretary of Education did not have the power under the HEROES Act, passed in the wake of 9/11, to use powers granted him during emergencies to waive student debts—even though the law plainly said he could choose to waive or modify student debts.

To arrive at this outcome, the majority invoked the “major questions” doctrine to point to the price tag of the loan forgiveness program—$430 billion—arguing that "the secretary has never previously claimed powers of this magnitude.” Because it was so big and new and scary, only Congress (and not the White House) had the power to undertake such a program. Never mind that Congress expressly wrote that power into the HEROES Act.

“The question is not whether something should be done; it is who has the authority to do it,” wrote Roberts.

Roberts seemed to take strongest issue with the idea that Congress did not have Covid but rather another national emergency in mind when it first wrote the law. The point, of course, is that Congress should be able to write broad national emergency laws, because national emergencies are by their nature hard to predict.

In another stinging dissent, Justice Kagan, who is fast becoming the leading voice for judicial restraint by a rogue SCOTUS, wrote, “This Court objects to Congress’s permitting the Secretary (and other agency officials) to answer so-called major questions. Or at least it objects when the answers given are not to the Court’s satisfaction. So the Court puts its own heavyweight thumb on the scales.”

Kagan also observed, correctly, that the majority decision “moves the goalposts” on the major questions doctrine, prospectively stripping the executive branch of ever more power.

How to rein in a rogue SCOTUS

The upshot of these cases, and the Court’s message, is plain. If the Democrats want to move boldly, whether to protect the environment or to ease student debt for millions, the Court will act as a blocker of last resort for their GOP friends by picking apart language and questioning the very authority of elected representatives to pass regulation and relief.

The last time a far-right court beholden to the wealthiest classes attempted this, it was during the New Deal era. The conservatives on the Supreme Court at the time had been blocking aspects of President Franklin D. Roosevelt’s economic agenda, and he was losing patience. He announced a plan to have Congress, then also controlled by Democrats, vote to expand the Court’s size by adding a new justice whenever an old one reached 70 and refused to retire.

That set off a 139 day political firestorm in the country. The threatened Court expansion didn’t come to pass, but many legal scholars believe it was the fear of a check by the other two branches that led to the Supreme Court acquiescing to FDR’s New Deal programs in the end. They began to approve the programs by a narrow majority, and the president called off his plans.

Are we reaching a similar point with this Court? Today, there is far less institutional respect for the Court than there was even back in the 1930s. This is in part because of how it has delegitimized itself over questions of precedent, standing, and general judicial restraint, discussed in this series. There is also a long shadow hanging over the Court from reports by ProPublica that billionaires are buying off the most extreme members, Justices Thomas and Alito, with fancy, undisclosed junkets, and in the case of Thomas, actual financial support for his family members.

To pass any bill to reform the Court—for example by imposing term limits or expanding its size—would require control of the House and at least 50 Democratic senators willing to carve out an exception to or eliminate the filibuster. Court reformers don’t have the votes in either chamber to do that at this time. But the issue of an out-of-control and unaccountable SCOTUS is high on the minds of many voters, and the Court is increasingly out-of-touch with popular opinion on key issues such as abortion, gun rights and the right of religious-based bigotry.

This sets up a possible crisis after 2024 should control of the House solidly change hands and should the Democrats retain at least 50 votes in the Senate with wins in Montana, Ohio and Arizona. Presently, President Biden is against Court expansion, but that doesn’t mean he won’t consider other options, such as mandated rotations off the Supreme Court.

If there is a strong national mandate for Biden and the Democrats in the next election, the Court should look to history to see how it might curtail its own extremism. In a pitched battle between the Court and the two co-equal branches of government, with the Court’s legitimacy and public favorability already at new lows, it is not a fight it is likely to win.