On Oct. 6, the Supreme Court opened its current term, which will be consequential for two reasons. First, it will decide several important cases affecting voting rights, civil rights, and presidential power. Second, and perhaps more significant, it will provide a test of the court’s own legitimacy.

Daan Braveman

Over 200 years ago, the Supreme Court rendered one of its most important decisions. In Marbury v. Madison, the court ruled that it has the power to decide whether the other branches of government have acted unconstitutionally. This is rather remarkable power given to a handful of justices who are appointed for life and cannot be voted out of office if we do not like their decisions. Today, a majority of five justices can determine that our elected representatives have acted illegitimately. This power, however, is significantly tempered by the fact that the court cannot enforce its own judgments. Indeed, the Federalist Papers call the judiciary the “least dangerous branch” precisely because it must rely on the other branches to enforce its decisions.  

Ultimately, the court’s power is derived from its legitimacy. We comply with decisions, even those we may not like, because we consider the court to be an independent institution that applies principles regardless of their political impact. As one well-known law professor wrote decades ago, “the main constituent of the judicial process is that it must be genuinely principled, resting … on analysis and reasons quite transcending the immediate result that is achieved.”

In recent years, several commentators have questioned the court’s political independence, raising fundamental questions about the court’s legitimacy. They argue that the current court is not applying neutral principles but instead has been imposing a political agenda. Developments over the past few months may have provided support for this proposition. Let me offer two examples.

Two years ago, the Supreme Court considered whether Harvard and the University of North Carolina acted unlawfully in their admissions process. Both schools had admissions policies that allowed consideration of the race of the applicant in the process. Race was not a sole or dispositive factor but rather was one of many factors used to determine admissions to these schools. Nevertheless, the court ruled that the programs were unlawful because the government cannot consider race at all in its decision-making. Chief Justice John Roberts’ language in the majority opinion is clear:  

“Eliminating racial discrimination means eliminating all of it. And the Equal Protection Clause … applies ‘without regard to any differences of race, of color, of nationality. … The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to another person of another color.”

At another part of his opinion, he underscored the principle that the government may not use race even as one of many factors:  “The race-based admissions systems … fail to comply with the twin commands of the Equal Protection Clause that race may never be used as a ‘negative’ and that it may not operate as a stereotype.” 

Consider in contrast the court’s recent decision in a case involving the government’s immigration enforcement raids in Los Angeles. The district court found that government was stopping people based on the following factors: 1) their apparent race or ethnicity; 2) whether they spoke Spanish or English with an accent; 3) the type of location at which they were found (such as a car wash or bus stop); and 4) the type of job they appeared to work. The lower court concluded that such stops were unconstitutional and prevented the government from engaging in these mass arrests. The government took an emergency appeal to the Supreme Court, which stayed the lower court’s injunction, thus letting the government continue its practice of using race and ancestry as one of the factors in making an arrest.

Because this was part of the so-called “shadow or emergency docket,” the court did not write an opinion justifying its decision. Indeed, it offered no reason for its decision and was completely silent about the government’s use of race and ethnicity as a factor. Justice Brett Kavanaugh, however, who had previously joined the opinion in the Harvard case, wrote a concurring opinion in the immigration case. He wrote: “To be clear, apparent ethnicity alone cannot furnish reasonable suspicion (for a stop) … however, it can be a “relevant factor” when considered along with other salient factors.”

One might fairly ask what happened to the principle that the government may never use race or ethnicity as a factor in its decision-making. What happened to Roberts’ admonition that “the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to another person of another color…?”  Why can the government use race and ancestry as one of several factors when mass arresting suspected immigrants but not use it when making admissions decisions? Neither the majority nor Kavanaugh explained this apparent inconsistency, and the failure to offer the explanation may lead some to wonder if the difference lies not in principle but in the political context.

A second example similarly illustrates the concern that the court is rejecting principle in favor of politics. The Higher Education Relief for Students (HEROES) Act authorizes the Secretary of Education to “waive or modify any statutory or regulatory provision” to protect borrowers affected by “a war or other military operation or national emergency.” Relying on the HEROES Act, President Joe Biden ordered the Secretary of Education to cancel billions of dollars of student debt because of the national emergency caused by the pandemic. The Supreme Court held that the statutory authorization to “waive or modify” did not give the president power to cancel billions of dollars of student debt. Biden, therefore, exceeded his constitutional authority.

In doing so, the court invoked the “major question doctrine.” Under that doctrine, when the Executive Branch purports to assert statutory authority to address a major question of “vast political and economic significance” it must point to statutory language that clearly empowers it to address the matter. The doctrine is based on separation of powers principles. Under our system, Congress makes laws, and the Executive Branch implements them. Congress may delegate power to the Executive Branch, but when the delegation relates to matters of “vast political and economic significance,” Congress must speak unambiguously in giving the Executive Branch the authority to take the specific action.

In contrast, consider the court’s recent treatment of various executive orders issued by President Donald Trump. In less than a year, Trump has issued over 200 executive orders, almost as many as he issued in his previous four-year term and over 50 more than Biden issued in his entire term. Several of these orders relate to matters of “vast political and economic” significance, such as the scope of a president’s power to impose tariffs, impound research funds authorized by Congress, cancel birthright citizenship, and fire thousands of employees. The orders were challenged, and in several instances lower courts found that Trump lacked authority to issue the orders and prohibited the administration from implementing them.

The Supreme Court, however, found ways to reverse the lower courts, thereby authorizing the president’s action. Once again, it did so as part of its emergency docket, without the benefit of full briefings of the issues, oral arguments, and reasoned consideration of the significant issues. It did not explain the basis for its decisions and certainly did not refer to the major questions doctrine that it had used to strike down actions by the previous administration.

When the cases return to the court for a decision on the merits, rather than as part of the emergency docket, the justices will have an opportunity to explain in depth the rationale for their decisions. It is possible that a majority of the court will apply precedent in a consistent fashion or offer convincing justifications for why a general principle does not apply. In the meantime, however, the lack of any explanation fuels the concern that the court is furthering a political agenda rather than applying principle, an approach that only serves to undermine its own legitimacy.

Daan Braveman is Distinguished Lecturer, Syracuse University College of Law, and President Emeritus, Nazareth University. The views expressed in this article are those of the author and are not attributable to any institution.

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