The Term From Hell and the Court that Isn't a Court
For two decades, I have argued that the Supreme Court of the United States is not a real court of law and its justices do not perform their jobs like real judges. My argument is based on a perfect storm of factors: Our Constitution is almost impossible to amend and is incredibly old; we are the only country in the world with a two-century tradition of aggressive judicial review; our justices have life tenure; our justices are selected through an overtly partisan nomination and confirmation process; and most of the constitutional language the justices have to interpret is too imprecise to set logical limits on the scope of that interpretation.
What all this amounts to is a tribunal that does not take prior law seriously enough to warrant the label “court of law.” I have set forth the detailed receipts for the conclusion that ideology, not law, dominates the Court's decisions in books, essays, articles, and blog posts. The main problem with the Supreme Court of the United States is that it is not a court of law at all but a hybrid political-legal tribunal with far too much power for a government body whose members we do not hire and cannot fire.
The 2025-2026 term shows that our country relies far too heavily on this anti-democratic tribunal to solve many of our most important and controversial political, social, and economic questions. The breadth and variety of the issues the Court is tackling this term shows how far removed the Supreme Court's docket is from the work of other courts around the world. And this problem is an old one. Way back in 1835, Alexis de Tocqueville famously observed that, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question."
Just so.
This term the Court will decide the following issues (among many others):
1) When are people born on American soil entitled to American Citizenship?
2) Can President Trump unilaterally impose tariffs on foreign countries whenever he feels like it?
3) Can Congress insulate independent agency officials from unilateral presidential termination?
4) Can Congress insulate Federal Reserve Board Members from unilateral presidential termination (you'd think numbers 3 and 4 would present the same question--alas, not so much)?
5) Can States ban all trans women and girls from playing on girls' and women's sports teams in middle/high schools and colleges?
6) Can a states bar mental health professionals from providing clients under the age of 18 with conversion therapy relating to same-sex sexual desires?
7) Can States pass laws that provide that the default rule for bringing guns onto private property that is open to the public is that the gun owner must receive express permission from the property owner to bring a gun onto the owner's property?
8) Is it constitutional for states to count mail-in-ballots received after election day?
9) Do redistricting maps that are designed to comply with Section 2 of the Voting Rights Act by creating majority-minority districts violate the United States Constitution?
10) Can the Federal Government make it illegal for habitual drug users to own guns?
11) Can federal campaign finance laws restrict coordinated spending between political parties and candidates for public office?
12) Can a Rastafarian man sue state prison officials in Louisiana for damages after guards shaved off all his hair in violation of his religious beliefs?
If the Court were to decide these types of country-defining issues with substantial focus on the Constitution's text and history as well as deference to more accountable governmental officials (and the voting public), maybe the justices could do their jobs like other judges. But the reality is that the justices don't care about text, history, or even their own precedent as much as they care about their own values, politics, and ideologies. The perfect storm of factors described above sets up incentives and patterns where the justices will want to impose their will on the issues they care about regardless of prior law, and that is why the Court regularly overrules many of its most important cases.
Our Supreme Court violates a golden rule of representative democracy: never give government officials virtually unreviewable power for life.
There is no constitutional text that can help the justices determine (among many other issues):
1) the appropriate balance between gun rights and gun safety;
2) the appropriate balance between free speech and money in elections;
3) the details of our citizenship rules;
4) what rules should govern participation of trans girls and women in organized girls' and women's sports;
5) whether Congress can insulate agency officials from unilateral presidential termination;
6) the validity of ballots received after election day; and
7) whether Congress has the authority to require states to use race based-remedies to make up for centuries of discrimination based on race.
What the justices will use to decide these cases, as Professor David Strauss has shown throughout his career, is their own precedents and personal values, not prior positive law. But those precedents are also based on the justices' personal values and are reversible at will by the justices when their values conflict with the values of prior justices. What emerges is a system of government that uses an unelected, life-tenured tribunal of lawyers to decide our most fundamental questions even though law plays a minimal role in how those lawyers actually answer those questions.
Simply wearing a black robe and and sitting in a courtroom in a big marble palace does not automatically make lawyers act like judges. Rather, a minimal respect for prior law is what distinguishes judges from legislators, but our Supreme Court has now shown over several centuries that it does not place much value, if any, on prior law.
Many people today criticize the Court for legitimate reasons, while numerous legal scholars have advanced a wide variety of excellent reforms to improve the Court. But you cannot fix a problem until the problem is identified accurately. The most serious defect of our highest "Court" is that it is not a court at all. And until we as a society come to terms with that problem, we will continue to be governed by an anti-democratic political council composed entirely of lawyers who are selected mostly for their partisan views and then impose those views on the rest of us regardless of prior law.
And that is no way to run a representative, constitutional democracy supposedly based on the rule of law.
-- Eric Segall