In the upcoming election, the future of the Supreme Court is at stake: The next president is likely to have the opportunity to appoint several new justices.
Consider the court’s actions in the final days of its term. It issued two blockbuster opinions that appear to be inconsistent: the Trump immunity decision, adopting a sweeping view of presidential immunity, and a case overturning a longstanding rule of judicial deference to executive branch administrative agencies.
The Trump decision bolstered presidential power where it should be weakest — in a criminal case that combines personal self-interest with interference in an arena (administering election results determined primarily at the state level) where the president has little legitimate authority. The other decision undermines “Chevron deference” to executive authority in an arena where administrative agencies have long been seen as possessing the sort of technical expertise other branches lack.
But the Supreme Court’s actions are part of a decades-long pattern of rulings that bolster what we have called the “winner-take-all economy” — that is, a system that allocates a disproportionate share of society’s resources to those already at the top. That ideological system is now moving into politics and the administration of the high court itself.
In our book, “Fair Shake: Women and the Fight to Build a Just Economy,” we explain this winner-take-all system in today’s economy. The system rests on a view of personal power rather than institutionalized power. At its core, it celebrates the great man (and, yes, the winners in the system are mostly men) who breaks free from bureaucratic constraints to create something new.
Think Elon Musk at Tesla, cutting through the challenges of jumpstarting the electric car industry. To free up these creative geniuses, the argument goes, it is necessary to unloose the coils of the bureaucratic state.
The Supreme Court has been providing the structure for this winner-take-all system. First, free-market advocates have sought since the 1970s to stack the court with pro-business conservatives. Ever since then, the court has been steadily undermining Wall Street oversight, white collar and public corruption criminal prosecutions and environmental regulations.
These decisions may unleash the creative genius of a Musk to ram through potentially transformative changes to the auto industry or space travel, but they also undermine the ability of the federal government and state and local prosecutors to hold the powerful to account for their actions that might harm the public — such as, say, issuing hundreds of thousands of vehicles into the stream of commerce with product quality defects. The Musks of the world no longer need to justify themselves to the little people they may trample along the way.
Second, the Supreme Court undercuts the ability of others to amass countervailing powers. This court has done its best to undermine union power, plaintiffs’ actions of various kinds, class certification and civil rights suits. These cases subverted prior precedent that had allowed groups that are often shortchanged by the actions of the powerful to band together and to use the rule of law to demand justice. Individuals retain the power to sue in single lawsuits in egregious cases if they can find a lawyer to take their case, but few private parties can demand systemic reforms.
The Supreme Court has sabotaged these efforts precisely because the conservative justices, on ideological grounds, do not like the interests plaintiffs’ lawyers seek to advance — interests opposed to the court’s economic and political commitments. The Supreme Court undercut a long-established basis for union funding because it did not like the pro-labor views that unions advance.
With the Supreme Court helping to suppress labor organizing, Elon Musk, notorious for mistreating his workers, won’t face a serious risk of unionization. And while Musk’s companies face numerous discrimination cases, paying out individual settlements is simply the cost of doing business.
Third, the court treats the winners in this increasingly rigged game as deserving their spoils. Winning becomes what counts, and the size of one’s fortune determines both merit and clout. The court has thus upheld the ability of corporations to contribute unlimited funds to political campaigns. Colleges can admit students based on wealth or legacy — but can’t consider race.
Finally, in this term, the Roberts Court has revealed that it too feels entitled to play by the winner-take-all rules. The court’s recent decisions are cavalier about reversing precedent and exhibit no pretense of being consistently “originalist.” Nor do the justices adhere to principles of judicial modesty that conservatives once championed; they have gone out of their way to increase their own power.
The effect of reversing the Chevron doctrine of deference to administrative agencies is to give the judiciary unlimited power to reverse federal actions it doesn’t like, ignoring both Congress and the executive branches when it chooses. And the court clearly views itself as unaccountable, as it ignores the public chorus for stronger ethics oversight. Chief Justice John Roberts has defended the court by insisting it is not partisan, even as it systematically prefers corporations to workers and uses libertarian principles that empower the strong over egalitarian ones that would protect the powerless.
The Supreme Court is saying that, in a winner-take-all world, Justice Clarence Thomas deserves the millions in gifts that conservatives direct his way; the court is entitled to make the world safe for pious Christians at the expense of the majority of the country; and the court can use whatever arbitrary judicial philosophy achieves its anti-democratic goals. This election might change the course of what democracy means in America.
June Carbone is the Robina Chair in Law, Science, and Technology at the University of Minnesota Law School. Nancy Levit is the associate dean for faculty and Curator’s Professor and Edward D. Ellison Professor of Law at the University of Missouri-Kansas City School of Law. Naomi Cahn is the Justice Anthony M. Kennedy Distinguished Professor of Law, Armistead M. Dobie Professor, and codirector of the Family Law Center at the University of Virginia School of Law. Together, they are the authors of “Fair Shake: Women and the Fight to Build a Just Economy.”