Remember the Whole Constitution

“Every day the [Supreme] Court’s power grab pushes us closer to a crisis, a catastrophic loss of institutional legitimacy.” So Michael Waldman argues in the opening pages of his important new book on the Supreme Court past and present. Indeed, one of the major themes of The Supermajority—made most powerfully through Waldman’s detailed account of the “three days [last] June” when the Supreme Court “changed America,” unilaterally ushering in profound shifts with respect to gun regulation, reproductive rights, and climate change—is that the Court and the individuals who sit on it are making decisions that place them at the center of the country’s most contentious political debates. Waldman further argues that in reaching those decisions—ones that are often powerfully out of step with the views of the American people—the Court is undermining its credibility and its legitimacy with the public.

Waldman starts his book by explaining to the reader how we got where we are, providing an accessible and captivating account of the Court’s history from the founding to the present. The throughline of this historical discussion is that throughout our nation’s history, the Supreme Court has repeatedly been at the center of public and political controversies. We saw that last June in its decisions on guns, abortion, and the environment. And we saw it again this June, as the Court issued major decisions on, among other things, race-conscious university admissions policies, LGBTQ equality, voting rights, and the Biden Administration’s student debt relief plan.

While the Court’s immense power might come as little surprise to modern-day Court watchers, those very same Court watchers might find more surprising the extent to which exercises of that power have repeatedly engendered fierce political disputes. This is why, as Waldman puts it, “robust debate about the Supreme Court is not a transgression—it is the way the country always has responded when jurists go too far.” Understanding this history puts into sharp relief Justice Samuel Alito’s complaints just before the start of the 2022-23 term that critics of the Court were going too far in “saying or implying that the court is becoming an illegitimate institution or questioning our integrity.” Given the role the Court plays, such debate is essential, and Waldman’s book is an important contribution to it, even if reasonable minds can disagree with some of his conclusions about exactly why the modern Court is so dangerous.

To Waldman, president of the Brennan Center for Justice at NYU School of Law and author of multiple books on American democracy and the Constitution, enemy number one is “originalism,” a method of interpreting the Constitution that emphasizes how the public would have understood the meaning of its provisions at the time they were adopted and often looks to the text and history of the Constitution to discern that meaning. According to Waldman, originalism is “having its big moment, and its flaws are on full display.” Among them, he notes, is the “absurdity of purporting to rewrite current mores and laws” in the light of a past that is so different from our present and a document written by individuals who often held views universally regarded as morally abhorrent today. Waldman urges his readers to “shed any illusions: today’s justices are not conservative because they are originalists; they are originalists because it is conservative.” And he faults progressives for “huddl[ing] in a defensive crouch” in the face of the ascendancy of this conservative methodology, describing it as “painful to watch Justice-to-be Ketanji Brown Jackson and other nominees find it necessary to make ritual originalist incantations, without uttering so much as a peep in protest.”

Yet in this attack on originalism, Waldman seems to be making the same mistake as many conservatives who purport to be originalists. Like them, he appears to conceive of the Constitution as the document that was originally ratified in 1789, and not as it is in 2023—one that has been amended over time by “We the People” to become more inclusive, more democratic, and more egalitarian. And that is why he assumes that an originalist approach to the Constitution necessarily leads to conservative rulings on issues like abortion.

While the Constitution of 2023 may remain imperfect, that does not mean that giving primacy to constitutional text and history will always lead to conservative outcomes on issues progressives care about. Indeed, the problem today is generally not with the values embodied in that document as amended, but in the way that it is misinterpreted by the Court’s conservative supermajority. Put differently, the problem is not that the Court is too often looking to constitutional text and history; rather, the problem is that far too often this Court’s conservatives—even the professed originalists—are not looking deeply enough.

The Court’s decision last June in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade and held that there is no constitutional right to access abortion, is a prime example. According to Waldman, “Alito’s originalism in Dobbs shows [originalism] to be dangerous and reactionary.” And in Dobbs, he later adds, “the originalism was drunk pure,” leaving “little doubt about the implications of the approach.” But in fact, while Alito’s majority opinion purported to consider the text and history of the Constitution, it failed to meaningfully engage with either. It made much of the fact that the Constitution does not explicitly use the language “a right to obtain an abortion,” but it failed entirely to engage with the language that the Fourteenth Amendment does use: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

This broad and sweeping language was added to our national charter against the backdrop of the suppression of Black Americans’ rights in the South in the aftermath of the Civil War. As my organization explained in a brief we filed in Dobbs, the Reconstruction Framers knew well that “fundamental aspects of personal liberty and bodily integrity were denied to enslaved people on a daily basis. Whippings, forced separation of husbands and wives and of parents and children, rape, and compulsory childbearing were all a central part of the lives that enslaved persons led.” The Fourteenth Amendment was drafted to address this denial of fundamental rights, including rights not explicitly identified elsewhere in the Constitution, to ensure that all people would have full autonomy over decisions related to their bodies. Indeed, as we argued, the framers of the amendment made clear that it was understood to protect basic personal rights, including the right to enjoy bodily integrity and to make decisions about whether to marry and start a family. The Dobbs decision did not engage with this history at all.

The conservative supermajority’s failure to meaningfully grapple with constitutional text and history was also on display this June in its decision in the affirmative action cases. As with abortion, text and history are at odds with the result reached by the Court. As my organization demonstrated in an amicus brief filed in the cases, the Fourteenth Amendment’s framers were in fact the originators of affirmative action. Justice Sonia Sotomayor made this very point in her dissent in the cases: “Simultaneously with the passage of the Fourteenth Amendment, Congress enacted a number of race-conscious laws to fulfill the Amendment’s promise of equality, leaving no doubt that the Equal Protection Clause permits consideration of race to achieve its goal.” And although Justice Clarence Thomas in a concurring opinion gave his “originalist defense of the colorblind Constitution,” Chief Justice John Roberts’s opinion for the Court did not meaningfully engage with this Fourteenth Amendment history. The failure of the Court’s conservative supermajority to adequately consider constitutional text and history underscores that the problem here is truly one with the Court itself—and not the Constitution that it is so frequently interpreting.

This Court’s failure to honor its professed methodological commitments is front and center too in the second danger Waldman points to—its attack on the regulatory state. As Waldman notes, “[I]n the last big case of the [2021-22 term], decided days [after Dobbs], the Court jettisoned originalism altogether.” In that case, West Virginia v. EPA, the Court held that the Obama-era Clean Power Plan, which was promulgated by the EPA to limit carbon dioxide emissions from power plants, exceeded the EPA’s authority under the Clean Air Act. Invoking the major questions doctrine—which, when it applies, requires “clear congressional authorization” before federal agencies can act—the Court’s conservatives held that the plan had to fall because Congress did not explicitly specify the types of emissions-reducing policies the plan relied on.

As Waldman writes, “some observers breathed relief” that the decision was not “as bad as it could have been,” but he rightly notes that “the impact will likely come not today but in its logical implication for dozens of other laws and rules.” Indeed, the major questions doctrine is now one of the chief tools that conservatives are using to try to bring down federal government action on a wide range of topics, from greenhouse gas standards for vehicles to the federal contractor minimum wage. In fact, opponents of the Biden Administration’s student debt relief plan relied on the doctrine in their legal challenge to the plan. (In its decision holding that the plan was unlawful, the Court’s majority invoked the doctrine as one possible ground for invalidating it, but was explicit that, in its view, the program was unlawful because it was not authorized by the plain text of the statute at issue in the case.)

As a general matter, these conservative efforts ought to fail because they overstate the reach of the major questions doctrine, suggesting that it applies whenever an agency action has “vast economic and political significance.” Notably, that’s not what the Court said in West Virginia. As misguided as that opinion was, it was cautious in its language, saying that the doctrine applies only in “extraordinary cases.” Indeed, as that case and prior Supreme Court cases all make clear, “vast economic and political significance” is not alone sufficient to trigger the doctrine—courts must also conclude that the agency is attempting to transform its power in a way that Congress did not authorize.

But whatever happens with the development of the major questions doctrine in the years ahead, Waldman rightly recognizes that the doctrine is but one part of a multifaceted conservative attack on the regulatory state. Another aspect of that attack that Waldman discusses is the effort to overrule a case that has been on the books for nearly 40 years called Chevron v. Natural Resources Defense Council. Chevron stands for the proposition that when a federal law is ambiguous, courts should defer to the reasonable interpretation of that law made by the agency charged with implementing it. The idea behind Chevron is simple: It will sometimes make sense for Congress to allow expert agencies to determine how best to implement the policies Congress adopts. As Waldman notes, “The Supreme Court has applied [the doctrine] over one hundred times,” and “[i]t has been the basis of thousands of legal decisions (or nondecisions) throughout the federal courts.”

Yet that could soon come to an end. As Waldman describes, “For years it seemed the Court was ready to undo Chevron, or at least to trim it significantly,” but “each June, the justices pulled back.” This game of chicken will continue next term in the case Loper Bright Enterprises v. Raimondo, and there is reason for concern. Although the Court was asked to decide both whether the lower court properly applied Chevron and whether Chevron should be overruled or at the very least limited, it agreed only to decide whether Chevron should be overruled or limited. The case is, in other words, a square challenge to the future of Chevron that will be heard by a Court that, as Waldman’s discussion of Dobbs demonstrates, seems to have little respect for precedent and considerable hostility to the agencies that enable the federal government to act effectively in the public interest. The Court will also be hearing challenges to the constitutionality of Congress’s decision to fund the Consumer Financial Protection Bureau outside of the annual appropriations process, as well as a case addressing challenges to Congress’s decisions about how the Securities and Exchange Commission can enforce the nation’s securities laws. And other challenges to the federal government’s ability to function effectively—challenges, for example, to Congress’s power to delegate questions to expert agencies and to create independent agencies—are currently working their way through the lower courts and could well be at the Supreme Court in the not-too-distant future.

As the country looks ahead to the next term and the ones to follow it, it seems clear that the Court is poised to make major decisions that will affect this country and its people in powerful ways. And that is why debate about the Court, its decisions, and how it reaches those decisions is so incredibly important. Michael Waldman’s book makes a vital contribution to that debate, making clear that the stakes could not be higher and offering suggestions for structural reforms, like term limits and an ethics code, that could help address the “crisis” posed by the current Court.

Waldman is certainly right that progressives should think boldly and creatively about what Court reform might look like. But at the same time that they do that, they should also continue to push back against this conservative Court’s claims about what our Constitution means and the rights it guarantees. Because as the conservative supermajority issues decisions at the heart of American political debates, they will argue that the Constitution made them do it. And more often than not, the text and history of the Constitution will show otherwise.