There’s no doubt that the Roberts Court has reallocated power to the people.
There’s no doubt that the Roberts Court has reallocated power to the people.
A s Donald Trump remakes American politics and the global hegemonic order, the unrelenting criticism against him has overflowed to those seen as complicit in his regime. Such targets range from the Republicans in Congress to rapper Nicki Minaj, but the most frequent collateral target is the U.S. Supreme Court. Lawyers, activists, and progressive critics have accused the Roberts bench of sacrificing a legacy of impartial justice for political loyalty and partisan self-interest. But what if, despite such attacks, the Roberts Court is in fact a bench of principle — albeit perhaps principles that challenge progressive assumptions? Might there be a moral method to the madness of the 6–3 conservative majority?
Such a claim faces strong headwinds. The critiques leveled against the Supreme Court read as a parade of horribles: They claim the Court is bowing to Trump’s will and failing to block his assault on American democracy and constitutionalism. They call it a collaborator, proactively facilitating Trump’s hijacking of government and consolidation of power. The result is the reversal of the Court’s role as a force for social progressive and moral justice — a mantle it proudly wore during much of the 20th century, exemplified by the Warren Court’s landmark decisions advancing equality and personal rights. Conversely, the Roberts Court is accused of a series of decisions that permit or proactively endorse autocratic executive power, plutocratic corruption, and discrimination. In the eyes of its critics — and they are legion — the long-vaunted institution has lost its once-glittering legitimacy.
If these accusations are true, the Court is betraying its core mission. The judiciary should be the central bulwark against the transgressions of elected leaders. Judges are sworn to serve the Constitution with majestic neutrality, resisting the whims of popular majorities and powerful constituents. So that they might better serve principle and justice rather than sway in the winds of politics, federal judges are insulated from the pressure of elections by tenure for life. Against a charismatic populist like Trump, the Supreme Court is the Constitution’s best defense. But to those who seek to indict the Roberts Court, it is now at best a passive enabler and at worst a silent partner in Trump’s attack on democracy. In their view, it has rolled back defenses of racial minorities and women and centralized power on matters ranging from immigration enforcement to stacking the federal government with Trump’s cronies.
Against this withering denunciation, the champions of the Roberts Court have a thin and unambitious reply: It is doing nothing but carefully parsing text. The originalist method now in vogue requires the Court to advance the fixed meaning of the Constitution. This account dominates support for the Roberts Court. For all its virtues — the Constitution is the unequivocal starting point of all permissible judicial intervention — such a modest understanding must face one weighty and dissonant fact: The Roberts Court is building a legacy of dramatic, even radical change, upending previous law from personal rights to national democratic design. Such interventions, justified by a seemingly humble method, risk creating the perception that the Court’s commitment to originalism is just a cover for collaborationism.
The result is an ugly asymmetric conflict. Critics of the Roberts Court claim it is undertaking a vastly destructive, politically motivated, and institutionally illegitimate project. Defenders of the Court would say it is performing a technically granular, intellectually bound formal exercise that incidentally has radical and wide-ranging ramifications. To critics, the Court is contributing to the oppression of the vulnerable and the accelerating decline of American democracy. To its defenders, it is carefully interpreting text and history, piece by piece. These aren’t just competing accounts. They are wholly incompatible views of the same world.
But what if the Court is guided by a value — far more ambitious than originalist incrementalism — that is morally defensible and internally coherent? Such a project would bring the Court’s current adventures far closer to what progressives think the Court should do at a general level: Advance justice and enhance democracy. The Roberts Court would just happen to be advancing substantive values that are conservative rather than progressive.
A sweeping view of the Roberts Court’s now two-decade legacy reveals that it has done precisely that. Most notably, it has allocated political power, in multifarious forms, to the people themselves. It has cut away layers of elite control of democracy, localizing how elections happen. It has curated rights in ways that return power over policy to the public but protected individual liberty when such liberty is central to political freedom. It has disempowered technocrats in favor of accountable elected officials. The wisdom of each of these decisions can be contested, but there is no doubt that the Roberts Court has vigorously advanced a striking vision of democracy and personal liberty.
This vision seeks to maximize the connection between the rank-and-file voters and political control. The Court’s decisions should aim toward a moral end: broad popular control of politics. This is the foundation of democracy and the only way in which the people rule themselves and vindicate their personal liberty. Enhancing the clarity and directness of such control is the through line of the Roberts Court’s decisions. In pursuing such a moral vision, the Court is undertaking a far more ambitious project than many realize.
This trend cuts across the Roberts Court’s boldest decisions. For example, in 2013’s Shelby County v. Holder, the Court nullified the Voting Rights Act’s longstanding preclearance provision. This provision prevented some states and localities from changing their own voting laws unless approved by a distant federal bureaucracy, based on historical patterns of discrimination. When it was introduced in the 1960s, this extraordinary removal of local power was accepted as necessary to fight racial oppression. In finding 50 years later that it was used too broadly, the Court returned power of self-rule to local constituencies. Critics say the decision raises the specter of unchecked racial oppression, but it actually returned power over politics to the people themselves.
This reallocation of power closer to the people has been the defining theme of the Roberts Court’s approach to democracy. In Citizens United v. FEC, the Court elevated the right of citizen to speak and spend over that of byzantine regulatory frameworks, trusting the electorate itself to hold officials accountable. Rucho v. Common Cause rejected a judicially defined right against partisan gerrymandering, allowing the political struggle to play out directly at the ballot box and in legislatures. Alexander v. NAACP concluded that political struggle tracing racial lines did not justify judicial intervention. Trump v. Anderson declined to allow the state of Colorado to remove Trump from the presidential ballot in the 2024 election due to supposed insurrection, instead leaving it to the people to decide his political fate. At each turn, the Court has decided that voters should make democratic choices without curation or oversight by elite institutions — whether political elites, bureaucracy, or the judiciary itself.
The elevation of popular autonomy goes beyond the Court’s decisions regarding democracy. Its varying treatment of rights can be best modeled by the question of whether the right at issue is fundamental to maintaining political liberty, or if it is essentially a policy decision better left to direct political decision-making. The Court has been robust in protecting rights to speech and religion because such liberties themselves are the foundation of free political action. Conversely, rights that are not direct instruments of political self-determination have been largely dismissed by the Roberts Court. For example, the Court declined to identify a right not to be criminalized for homelessness, finding such a complex social issue to be a matter for political, rather than constitutional, resolution. In rejecting the right to abortion, the Court framed it as a return of power over abortion policy to the people. In these cases, by declining to name rights, the Court identified the policies at issue as disconnected from the core of citizen self-rule. Without such a connection, regardless of the moral weight of the policy at issue, the matter should be left to democratic debate, not resolved by an elite institution.
Finally, the Court’s vision of the wider constitutional order has been driven by facilitating popular accountability. Under the unitary executive theory, the Court has enhanced presidential power over all executive subordinates, including through the extensive ability to hire and fire. The major questions doctrine emphasizes that it is only Congress that has the power to make policy — and likewise, it is Congress that must bear the responsibility and electoral consequence of those policies. Yet, the Court has not advanced these choices as a matter of optimized governmental design: They are for the benefit of voters alone. Unitary executive theory and the major questions doctrine both allow voters to clearly identify who has taken a specific governmental action, and then to hold accountable the responsible actor without ambiguity or obfuscation. Institutional design must submit to what best serves the people’s ultimate political authority.
The Court’s decision in Learning Resources Inc. v. Trump last month to allocate power over tariffs to Congress rather than the president relied precisely on this principle. Based on the notion of allocation of responsibility, the Court argued that tariffs are a central domain of basic legislative policymaking, and such power belongs to Congress. Such clarity in distribution of responsibility maintains democratic accountability and thereby serves popular control of the nation. For just this reason, signature projects of the Biden administration — such as the loan forgiveness program and energy regulation measures — faced the same fate as the tariffs. Learning Resources shows that the central concept of the major questions doctrine is appropriately clear allocation of power, backed by an understanding of the legitimate scope of the congressional role. The decision speaks not to the wisdom of the underlying policy, but to respect for popular accountability as the soul of democracy.
The service to popularly empowered democracy is the true legacy of the Roberts Court. Ironically, this is not the first time the Supreme Court has been inspired by an ideal of American governance. The most celebrated bench — at least among critics of the Roberts Court — is the Warren Court of the 1960s, famous for its progressive vision of personal liberty and institutional justice. Yet the Warren Court was also driven by a moral vision of how to negotiate the balance between popular self-rule and competing values. The Warren Court tended to constrain government when it perceived a violation of personal rights, ranging from access to voting to criminal procedure to educational equality. Such decisions inevitably came at a cost to majoritarian self-rule, but the Warren Court struck a balance between the competing interests of blunt, popular citizens’ rule and the rights of the vulnerable.
More than half a century later, the Roberts Court has turned judicial lawmaking into an engine of raw popular will. So conceived, the Roberts Court justices have neither hijacked the law to serve their own beliefs, nor been led by complicity with the Trump administration. Rather, they have affirmed that rank-and-file voters remain the center of the grand project of American democracy. The Supreme Court’s specific choices in this project can be challenged, disputed, contested, and condemned — but it cannot be denied that the current arc of the Court’s decisions follows a moral vision. Such judicial advocacy for democracy marks the most celebrated Supreme Court eras in American history, from Marshall to Warren. Critics might disagree with the ideal of democracy that the Roberts Court has championed, but they should not diminish the core spirit of its endeavor.