The Imperial Supreme Court

27 Pages Posted: 28 Jul 2022 Last revised: 10 Aug 2022

Date Written: July 28, 2022

Abstract

The past two years have marked the emergence of the imperial Supreme Court. Armed with a new, nearly bulletproof majority, conservative justices on the Court embarked on a radical restructuring of American law across a range of fields and disciplines. Unlike previous shifts in the Court, this one isn’t marked by debates over federal versus state power, or Congressional versus judicial power, or judicial activism versus restraint. Nor is it marked by the triumph of one form of constitutional interpretation over another. On each of those axes, the Court’s recent opinions point in radically different directions. The Court has taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts. And it has done so using a variety of (often contradictory) interpretative methodologies. The common denominator across multiple opinions in the last two years is that they concentrate power in one place: the Supreme Court.

My goal in this essay is not to criticize these decisions on the merits, though there is much to criticize; lots of others will do that. Nor do I aim simply to make the legal realist point that the Justices will do what they want in the cases before them, though the last few terms provide ample evidence for that claim too. Rather, my argument is that the Court has begun to implement the policy preferences of its conservative majority in a new and troubling way: by simultaneously stripping power from every political entity except the Supreme Court itself. The Court of late gets its way not by giving power to an entity whose political predilections are aligned with the Justices’ own, but by undercutting the ability of any entity to do something the Justices don’t like. We are in the era of the imperial Supreme Court.

Suggested Citation

Lemley, Mark A., The Imperial Supreme Court (July 28, 2022). Available at SSRN: https://ssrn.com/abstract=4175554 or http://dx.doi.org/10.2139/ssrn.4175554

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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