So, Uh, What Is Going on With the Supreme Court?
This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
Here at Slate, we’ve long given specific focus to the Supreme Court, its justices, and its decisions. But in recent years, as legislation in Congress has stalled out, we’ve realized that in fact, this third branch of government has some of the biggest influence over Americans’ lives.
Maybe you’ve realized that, too, thanks to increasing scrutiny and coverage of the courts, but you don’t know exactly how to start following SCOTUS. We get it; it’s confusing, and we’re not all lawyers. That’s where we come in—if you’re interested in understanding more about what the high court is, how it functions, and why it seems to have recently lurched to the right, start here.
The nine justices who sit on the Supreme Court are supposed to be impartial jurists who sort out disagreements in the lower courts and have the last word in U.S. law. At his confirmation hearing, Supreme Court Chief Justice John Roberts compared his role to that of an umpire in baseball: “Umpires don’t make the rules, they apply them.”
In practice, however, the modern-day Supreme Court has an inordinate amount of leeway in choosing which cases it hears and in choosing how to interpret them, and the justices are some of the most powerful unelected officials in the country. They can advance a political agenda through selective readings of case law, by discarding precedent when it doesn’t suit them, and by accepting ginned-up fake cases fed to the court by interest groups that are basically designed to give them an excuse to roll back established rights.
Many of the conservative justices on the court say they follow the theory of originalism—the idea that the law should be interpreted based on what the founders who wrote the constitution would have wanted. (Yes, the founders who lived in the 18th century, when women couldn’t vote, slavery was legal, and the lightbulb hadn’t yet been invented.) But as Dahlia Lithwick and Mark Joseph Stern have explained at length for Slate this year, originalism is a relatively new means of legal interpretation that more or less provides an excuse for the justices to cherry-pick the parts of history that suit them. And attempts to counter the theory with “progressive originalism” have largely been a losing game for the liberal legal movement. Which means that for the foreseeable future, many of the cases coming down from the high court will be regressive, and justified by “originalism.”
It is not easy to get a case to the Supreme Court. The court receives over 7,000 cases for consideration every year and only takes on about 100 to 150. At least four of the nine justices have to agree to hear the case—known as an order of certiorari—and that’s only if they feel the case is “sufficiently important.” The Supreme Court only takes cases that hold national significance and ones where lower federal courts can’t seem to agree, which is why many cases end up being about the government violating the Constitution and are appeals from lower courts, like Donald Trump’s presidential immunity case.
Before a case gets to the Supreme Court, it must work its way through the judicial system, generally starting at one of the country’s 94 district courts. There, a single judge or jury will decide the outcome, and the loser can appeal the decision. If they appeal, the case levels up to one of the country’s 13 circuit courts of appeals. Again, the case is considered by a new set of appellate judges and they will either agree with the district court or decide that that court got it wrong and reach a new conclusion.(Cases can, more rarely, rise up through the state court systems and reach SCOTUS.)
The loser from the court of appeals’ decision can choose to appeal again—and this is where the Supreme Court can come into the picture. If a person wants to try a case again to get a more favorable outcome after the court of appeals rules, their attorney can petition for a writ of certiorari—aka asking SCOTUS to take the case.
In recent decades, as the Supreme Court’s conservative majority began to take shape, a slew of far-right interest groups have been petitioning the court to take up questionable cases. Many of the cases aim to roll back rights that are at the core of these interest groups’ agenda to change American law.
The Alliance for Defending Freedom and First Liberty Institute are two prominent right-wing groups that have brought multiple cases before the Supreme Court that did not pass the smell test. In 2022, the ADF brought 303 Creative LLC v. Elenis, a case that argued a website designer’s First Amendment right was being violated by a Colorado civil rights law because it would force her to offer wedding website services to same-sex couples, which goes against her religious beliefs. But … the wedding website designer at the heart of the suit did not actually make a single wedding website. “It’s a fake case,” Mark Joseph Stern explained. “This is simply a vehicle to manufacture an excuse for this Supreme Court to open the floodgates of legalized discrimination against gay people.”
The ADF is similarly behind a consequential case currently before the Supreme Court that argues the Food and Drug Administration’s approval of the abortion drug mifepristone—which was 23 years ago—caused injury to a group of anti-abortion doctors and medical associations. However, these folks “do not prescribe mifepristone,” Dahlia Lithwick explained. “Rather, they worry that someday, some patient who has taken mifepristone prescribed by a different doctor might have serious adverse complications and end up in their care—forcing them to be ‘complicit’ in abortion simply by treating the patient.” (The court ruled against the petitioners in this case 9–0, underscoring the lack of standing that they had.)
The 5th Circuit in particular—the Trumpiest circuit court, which Stern has called the place “?where the law goes to die”—seems to love these cases.
The 5th Circuit Court of Appeals covers Louisiana, Mississippi, and Texas. Trump appointed six judges to this bench, some of whom are among “the most extreme jurists in the country,” as Stern explained. Many of the Supreme Court’s most consequential cases of this term came from the 5th Circuit, including the gun control case U.S. v. Rahimi.
There have been moments where even the Supreme Court’s conservative justices have rebuked the 5th Circuit. Just this year, Justice Clarence Thomas, one of the court’s most extreme conservatives, penned a majority opinion that completely rejected a ruling by the 5th Circuit that declared the Consumer Financial Protection Bureau unconstitutional. And this year, the Supreme Court also rejected FDA v. Alliance for Hippocratic Medicine, a case sent up from the 5th Circuit that sought to eliminate access to the abortion drug mifepristone.
The Supreme Court’s term begins on the first Monday in October and goes until the Sunday before the first Monday in October of the following year—but the justices have self-imposed a deadline to issue all decisions before the first week of July, when they go on recess.
During oral arguments, held from October to April, lawyers from each side of each case get to argue before the nine justices—and it’s also open to the public. There is no jury; the justices are the only ones deciding the case.
Oral arguments are critical because lawyers only get one chance to present their best legal case, and they must be prepared to answer all of the justices’ questions. This is the only time when the justices weigh in on a case publicly, aside from the ultimate written opinions, and their questions and comments usually offer hints as to which direction they’re leaning on an issue. Sometimes a justice’s line of questioning can give us hints about how they might decide the case.
The court starts issuing its decisions as soon as they’re ready, often in December or January, and continue throughout the year—typically saving the biggest and most controversial ones for the end of June.
First, the flags. In May, the New York Times revealed that two flags used by supporters of Donald Trump and linked to insurrectionist groups were flown outside two of Justice Samuel Alito’s homes. This immediately suggested that Alito has a conflict of interest, because as we speak the court is working on two cases related to Trump’s actions on Jan. 6 and rioters who participated in the insurrection. Alito refused to recuse himself from either case, despite it being a clear display of bias, which violates the court’s ethics code.
And, as Dahlia Lithwick argued, Alito’s justification for not having to recuse himself—that the flags meant something different back in the 18th century—ties back to why originalism is so problematic: “Let’s all agree to ignore the contemporary meaning of this flag in favor of broad, outlandish claims that the centuries-old meaning is the only reasonable one,” she wrote.
And Alito isn’t the only justice to be embroiled in an ethics scandal in recent years. Just last year, Justice Clarence Thomas was in hot water after a ProPublica investigation revealed that over the course of more than two decades he had accepted luxury vacations from a billionaire conservative. That’s on top of Thomas’ wife, Ginni, being an ardent Trump supporter who texted Mark Meadows, Trump’s former chief of staff, in the immediate aftermath of the 2020 election with words of encouragement to overturn President Joe Biden’s victory.
All of these incidents haven’t resulted in any consequences for the justices, but have created a severe erosion of trust in the Supreme Court.
