The past few years have marked the emergence of the imperial Supreme Court. Armed with a new, nearly bulletproof majority, conservative Justices on the Court have 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.
In Part I, I show that the Court has not been favoring one branch of government over another, or favoring states over the federal government, or the rights of people over governments. Rather, it is withdrawing power from all of them at once. I also show that this result cannot be explained by any consistent judicial philosophy. The Court is happy to embrace conflicting philosophies to achieve the ends it wants in the case before it. In Part II, I suggest that the imperial Supreme Court is something new and dangerous and that we must consider more radical options to protect the American form of government.
I. Concentrating Power in the Court
The sole consistency that I can find [in our antitrust merger cases] is that . . . the Government always wins.
— Justice Potter Stewart1
Were Justice Stewart on the Court today, he might have to revise his famous aphorism. The only consistency I can find in modern Supreme Court cases is that the Court always wins. Political debates over the role of the Court in prior eras tended to focus on the relative allocation of power between other parts of the government. Did the rise of the administrative state take too much power out of the hands of Congress and give it to the executive branch?2 Did “activist” federal courts overstep their bounds in striking down acts of Congress as inconsistent with the Constitution?3 Did the growth of federal power — legislative or judicial — encroach on the power of the states?4 The Court in different periods has sided with different political actors in each of these debates.
What’s different about the modern Court is that it doesn’t consistently seem to take one side or the other in any one of these debates. Let’s consider each of the potential holders of power in our federal system.
A. Administrative Agencies
Conservatives have long sought to rein in the power of the administrative state (though those efforts curiously seemed to be put on hold during the Trump Administration). Many of those efforts have targeted the “Chevron5 deference” courts have given since 1984 to agency interpretations of unclear statutory commands.6 That deference is based on agency expertise, and it has traditionally been at its highest in complex areas where agency expertise is more important.7
Despite the expectations of some, the Court didn’t overrule Chevron last Term. Instead, it took an even more powerful step to limit agency power. In West Virginia v. EPA,8 the Court held that agencies can’t take action on anything the Court considers a “major question” without clear and explicit congressional approval, no matter how detailed and bound up with agency expertise that question is and regardless of congressional intent to delegate that question to the agency.9 Indeed, the facts of West Virginia v. EPA involve individual decisions about how to account for carbon emissions from a variety of different polluters, decisions which must be made in response to constantly changing conditions;10 it is impossible to imagine Congress making those decisions itself on an ongoing basis. So the practical effect of the decision is to make it impossible for the EPA to regulate carbon emissions by coal plants and to drastically limit its power to handle climate change more generally.11
The “major questions” doctrine the Court employed is a recent judicial invention, one that has no basis in the Constitution or congressional mandate.12 It seems to be designed to allow the Court to reject significant agency actions that are within their grant of power but that the agency implements in ways the Court doesn’t like, such as the EPA’s efforts to restrict carbon emissions in West Virginia v. EPA. Justice Gorsuch’s concurrence would have gone even further, dredging up the idea of a “nondelegation” doctrine that would sometimes forbid Congress from authorizing agency action no matter how clearly Congress expressed that preference.13
West Virginia v. EPA is the most recent and most significant example of the Court taking power from administrative agencies, but it is far from the only one. The Court also used “emergency” procedures to block the implementation of EPA water-quality rules.14 It overturned most of the government’s vaccine mandates, in part by substituting its own judgment of the harms from COVID-19 for the agency’s15 but in part by declaring that the Occupational Safety and Health Administration doesn’t have the power to issue regulations that govern health and safety in the workplace unless those regulations govern harms that exist only in the workplace.16 In recent years the Court has taken away the power of the Federal Trade Commission (FTC) to seek disgorgement remedies in enforcement actions in federal court, following what does appear to be the plain language of the FTC Act17 but overruling or ignoring its own prior precedent and the historical understanding of equitable powers.18 Notably, while the Court has not overruled Chevron, it often decides these cases without citing or applying Chevron at all.19 And it has held that administrative law judges are unconstitutional unless they are confirmed by the Senate or their decisions are subject to discretionary reversal by a Senate-confirmed agency head.20 The Court has not (yet) gone so far as to dismantle the administrative state. But it is clearly embarked on a project to rein in the power of administrative agencies, at least when they do things the current Court majority doesn’t like.
By contrast, the Court apparently didn’t consider the Trump Administration’s ban of all immigrants from certain countries or the Trump Administration’s regulatory exemption from the Affordable Care Act’s contraception mandate to involve “major questions.”21 Some of that difference may reflect the Court majority’s support for the Trump Administration’s policies on the merits. But it also may reflect a difference between the current majority’s view of administrative agencies and its view of presidential power. The latter has continued to expand in recent years.22 Indeed, the Court has recently embraced the consolidation of presidential power over agencies under a theory termed the “unitary executive.”23 It remains to be seen whether the conservative judicial support for presidential power will survive the transition to a Democratic president. But as Blake Emerson notes, there is considerable tension between the Court’s “unitary executive” idea and its increasing scrutiny of agency action.24
While the Court’s effort to limit the power of agencies might in turn seem to shift power to Congress, which has traditionally been on the other side of separation of powers battles,25 the Court is cutting back congressional power too. Most radically, in TransUnion LLC v. Ramirez,26 the Court held that Congress had no power to create a cause of action enforceable in federal court based on a new theory of harm unless that new theory of harm was analogous to one that existed at the time of the Founding.27 In that case, Congress created a cause of action for people whose data was deliberately mishandled by credit reporting agencies, giving them the right to recover statutory damages of $100 to $1000 even if they could not show that they suffered financial injury as a result of being misclassified.28 The Court held that while Ramirez, who was wrongly classified as a terrorist by the credit agency, suffered harm, other class members who couldn’t show financial loss could not bring a claim to enforce the statute because there was no “case or controversy” under Article III.29
While a plaintiff’s ability to collect statutory damages would naturally seem to satisfy the “case or controversy” requirement, the Court held that it didn’t because Congress could create new causes of action only if they addressed the sorts of injuries analogous to those that courts considered in the eighteenth century.30 The ability to collect $1000 in statutory damages, the Court held, did not qualify.31 Justice Kavanaugh’s opinion for the Court was express in worrying that if the Court allowed Congress to create new causes of action, people might be able to seek redress for other forms of injury Congress decided to recognize.32 The Court specifically mentioned harm to the environment as an example of something Congress couldn’t legislate a cause of action for,33 which is particularly ironic in light of West Virginia v. EPA. But its implications may run much more broadly, striking down statutory damages rules in very different fields like copyright34 and calling into question the power to create procedural mechanisms like class actions.
Nor is TransUnion alone in restricting congressional power to act. The Court in 2022 rendered campaign finance reform (even more) toothless in FEC v. Ted Cruz for Senate,35 holding that candidates had a First Amendment right to loan unlimited amounts of money to their own campaigns and then collect campaign contributions that would otherwise violate the law to repay themselves that money.36 On another occasion, it held that Congress had no power to create a new agency whose head could not be fired summarily by the President, even though numerous government agencies and commissions have long had independent leadership.37 And it stood in the way of efforts of congressional committees to subpoena documents from the Trump Administration in Trump v. Mazars USA, LLP.38 This is part of a longer-term effort to cut back congressional power39 even when expressly delegated by the Constitution.40 And while courts have always restricted the power of Congress to act in unconstitutional ways,41 what is remarkable about TransUnion and Mazars is that they reflect a judicial decision to reject congressional power even absent a claim that it violated some constitutional right.
C. Federal Courts
If the Supreme Court is limiting the power of both Congress and the executive branch, perhaps that power is shifting to the federal courts, giving them greater power to police the actions of the other branches of government? In fact, however, the Court has also limited the power of lower federal courts in various ways. In the last two Terms, the Court held that federal courts can’t review agency immigration decisions even when they clearly violate the statute, upholding but also extending statutory restrictions on judicial review of detention, deportation, and discretionary relief.42 And the Court has proved no more welcoming to new judicial initiatives than it has to those from Congress or the executive branch. It has restricted the power of federal courts to apply common law torts principles,43 the power of courts to remedy unques-tionable constitutional violations,44 and the ability of juries to award punitive damages.45 It has broadened the doctrine of qualified immunity to such an extent that no right seems “clearly established” unless the Supreme Court itself has held it so, regardless of how clear the right is in the appellate courts.46 Nor is the Court merely restricting the continued development of common law and equity. It has curbed the traditional powers of federal courts in equity, reading even an express grant of equity power in the Lanham Act so narrowly that it might as well not exist.47 Three or perhaps four Justices in Minerva Surgical, Inc. v. Hologic, Inc.48 would have eliminated a longstanding (and admittedly problematic) equitable doctrine in patent law, not because it was problematic but simply because it was an equitable doctrine.49 They suggested that courts had no power to apply equitable doctrines to federal statutes unless they were “part of the well-settled common-law backdrop” of the statute.50 And in Minerva, even a century of application of the estoppel doctrine in equity didn’t qualify to make it part of the “backdrop.” That is a remarkable change from the broad grant of power that has characterized equity for centuries.51
Procedural changes at the Court have also undermined the power of lower courts, both by refusing to give deference in places where it has long been held due and by trampling on the rules of equity that govern stays. As Stephen Vladeck and others have documented, the Court increasingly makes significant changes in the law on what William Baude has termed the “shadow docket” without full briefing or argument.52 In fact, the growth of the shadow docket is so dramatic that the Court last Term issued more “emergency” orders than opinions in cases on its regular docket.53 And those cases increasingly concern not merely procedural issues like stays but also full rulings on extremely important and controverted issues. In the last Term, for instance, the Court overturned the government’s vaccine mandate54 and required both Alabama and Louisiana to hold elections using an illegal map, all without consideration of the merits.55 The result has been, as Justice Kagan noted, to render “the Court’s emergency docket not for emergencies at all. [It] becomes only another place for merits determinations — except made without full briefing and argument.”56
The Court’s increased use of the shadow docket has been coupled with a rather striking disregard of the traditional rules of equity governing stays and other temporary relief. While the Court itself set out those rules in no uncertain terms not too many years ago,57 it has disregarded them in the interest of quickly reaching the result it wants rather than waiting for full briefing. In issuing a stay striking down the vaccine mandate for government contractors, the Court not only disregarded the normal purpose of a stay — to preserve the status quo pending a full substantive hearing58 — but affirmatively announced that it was free to ignore the balance of hardships and the public interest altogether, paying attention only to the question of who was ultimately likely to win the case.59 That is directly contrary to the law, which requires consideration of relative hardships to the parties and to the public before issuing a stay.60 The Louisiana case is a particularly striking departure from procedural norms. There, the Court converted a motion to stay an injunction into a merits case before a final judgment on the merits and then immediately ruled on that newly created merits case.61 In doing so, it effectively nullified the detailed decisions of both the district court and the Fifth Circuit without even entertaining briefing on the merits, much less giving deference to the factfinding of lower courts.
The Court’s disregard of procedure and the deference it is supposed to give to factfinding isn’t limited to the shadow docket. In Kennedy v. Bremerton School District,62 the Court took the remarkable step of rewriting the facts of the case, ignoring what actually happened (as found by both the district court and the court of appeals and documented with photographs), and writing its own (false) set of facts to tell a more favorable story for the outcome it wanted to reach.63 It has reached out to decide issues not presented by the case before it,64 despite clear and longstanding rules against issuing advisory opinions.65 And it has repeatedly violated its own rules for standing and mootness, dismissing actual controversies between parties with a concrete interest for lack of standing in TransUnion66 pp. 102–03. and Whole Woman’s Health v. Jackson67 while overlooking problems of standing and even mootness when the Court has decided it wants to rule on a particular issue, as it did in West Virginia v. EPA.68
The practical effect of these changes has been that while the Court is taking power away from Congress and the executive branch, it isn’t vesting that power in the lower federal courts. To the contrary, it is hamstringing them by bypassing longstanding procedural and substantive rules and its own doctrine in order to reach out, take, and decide major legal questions that either are not presented at all or have not proceeded through the courts to establish a record.
All this in turn might seem to shift power to the states. Conservatives of another era pushed for greater power for states vis-à-vis the fed-eral government. Prior Court limits on federal power often expressly delegated that power to the states.69 And some cases, such as Dobbs v. Jackson Women’s Health Organization,70 do give power to state governments, albeit at the expense of individual rights. But the current Court has regularly imposed new limits on the power of the states to regulate in areas they have long been able to, from public health to public safety. In the past year, the Court held that the State of California had no power to prevent the spread of COVID-19 by applying neutral rules of general applicability that governed group gatherings to churches.71 It held that public school districts had no power to prevent their employees from leading students in public prayer on school grounds during school events.72 It extended its string of decisions holding that the Federal Arbitration Act73 (FAA) overrides virtually all state and federal causes of action.74 And it overturned New York’s law regulating the carrying of guns in public places, creating a new constitutional right to carry guns that does not appear to be limited by most state registration or safety requirements.75
The Court seems poised to intrude even further on states’ rights next Term. It granted certiorari in a voting case in which the petitioners argue that state courts and executive officials have no power to apply state voting laws and constitutions and that the exclusive decisionmaker for federal elections must be state legislators.76 A decision for petitioners would not only be a remarkable intrusion on state legal process —essentially holding that Marbury v. Madison77 is federal law but states are precluded from following it — but also present a real risk that the United States will no longer be permitted to hold democratic elections.78
In each of these cases (except Dobbs), the Court siphoned power away from the states.79 Some of those cases involved the Court’s expansion of the few individual rights it favors. More on that in the next section. Others involved Court intervention in how states decide things. But each of them withdrew from states power they had long held in areas of their core competency — health and safety, public education, and the design of their own governments. And even Dobbs put a different sort of power in the hands of the current Court — the power to overrule prior Supreme Court decisions it simply doesn’t like.
E. Individual Rights
Circumscribing the power of all branches of government at all levels might be thought to correspondingly increase the freedom of individuals, who are less subject to government regulation. In fact, however, with the exception of a few favored areas where the Court created new rights — the right to carry guns in public80 and the right of government officials to pray at public events81 — the Court’s recent history has been one of withdrawing rights from the public. Most famously, it eliminated the right to reproductive freedom, giving states the power to compel birth.82 It has also effectively eliminated the power of federal courts to enforce the right to vote, announcing that it was withdrawing from efforts to protect the right to vote against partisan gerrymandering a few years back83 and following up by affirmatively preventing federal and possibly even state courts from blocking concededly discriminatory gerrymandering schemes.84 And it declared that one of the most famous rights given to criminal defendants — the Miranda warning — was not in fact a right at all that citizens could enforce, but just a prophylactic rule that the Court might change at any time.85 At least one Justice signaled his desire to go further by rolling back protections for marriage equality and contraception access.86
F. Judicial Philosophy
Nor can these changes be explained by a particular judicial philosophy, whether originalism, textualism, dictionary fetishism, stare decisis, or anything else. Conservative Justices regularly recite fidelity to each of those methodologies. And sometimes they apply them. But they are just as happy to depart from them when it serves their interests to do so.
Textualism is the backbone of conservative decisions — until it isn’t. In West Virginia v. EPA, the Court ignored the D.C. Circuit’s detailed textual reading of the Clean Air Act in favor of a judicially created constitutional doctrine first mentioned more than a century after the founding and that hasn’t really been applied until the last few decades.87 In New York State Rifle & Pistol Ass’n v. Bruen,88 the Court ignored the text of the Second Amendment to create a new constitutional right to override the ability of states to regulate guns.89 In Kennedy, it ignored not only the text of the First Amendment but the facts of the case before it in order to throw out the bulk of the Establishment Clause.90 I have written elsewhere about the Court’s inconsistent use of dictionaries, which seem primarily to provide cover for whatever version of plain meaning the Justice invoking the dictionary seems to prefer.91
Nor does originalism fare any better. Bruen and Kennedy both ignored the original understanding of the Constitution to implement a decidedly new version of the First and Second Amendments that would look quite unfamiliar to the Framers.92 The Court’s decisions invalidating the Voting Rights Act’s crucial preclearance regime93 manifestly ignored the purpose and history of that act.94 And in Dobbs, the Court went to considerable lengths to gin up a history suggesting that the Founders intended to regulate abortion while ignoring contrary evidence.95 Even the rare decision expanding individual rights — Justice Gorsuch’s 2020 decision in Bostock v. Clayton County96 prohibiting workplace discrimination on the basis of sexual orientation and gender identity — reflected a clear departure from the original intent of Title VII.97
Nor is the Court any longer constrained by the principle of fidelity to past precedent. Dobbs in particular shows the limits of stare decisis as a constraint on judicial activism. The Court there expressly overruled fifty years of precedent, including its own prior decision in Planned Parenthood of Southeastern Pennsylvania v. Casey98 that it shouldn’t overrule established precedent on the question of abortion.99 But while Dobbs is the most dramatic example, it is not alone. Vega v. Tekoh100 essentially overruled Dickerson v. United States,101 giving no weight to stare decisis in undercutting the constitutional significance of the Miranda warning when it comes to private claims for violation of constitutional rights.102
None of this is to say that textualism, originalism, and fidelity to precedent aren’t playing a role in modern Court opinions. But they are tools the Justices deploy to achieve particular results those Justices have already decided they want to reach; they can’t explain those results because they aren’t used consistently.
II. Confronting the Imperial Era
The Court’s cases in the 2020s can’t be explained by any of the normal power axes — Congress versus the administrative state, courts versus the other branches, states versus the federal government, government versus individual rights. Nor can they be explained by fidelity to a philosophy of law, and certainly not by fidelity to stare decisis and the legal process itself. True, there are individual cases that benefit some of those parties at the expense of others. If a state sues an administrative agency, one of them has to win. But there is no consistent explanation for the cases that fits any of the conventional axes of Supreme Court politics.103
There is one consistent theme in the cases, however. They centralize power in the Supreme Court, which today is not only the most activist of any Court in the past century, but increasingly the locus of all legal power. This is not a Court that “calls balls and strikes,” as the ludicrous metaphor suggests.104 It is not even a Court that is using the tools of common law and equity to adapt the law in ways that it prefers. It is a Court that is consolidating its power, systematically undercutting any branch of government, federal or state, that might threaten that power, while at the same time undercutting individual rights.105
I don’t necessarily think the Court’s new majority is doing this intentionally, aggregating power for its own sake. A more plausible explanation is that a newfound conservative majority is simply doing whatever it wants in the cases before it, consistent with a particularly strong form of the legal realist idea that judges just implement their own policy preferences.106 On that theory, perhaps the restrictions it has imposed on the power of Congress, administrative agencies, lower courts, and the states are simply byproducts of its desire to rewrite the law on the merits. In other words, the imperial Supreme Court may result not from a desire to take power away from other branches of government but from a desire to do what the Court wants and to prune back what it views as obstacles to that goal. Congress or the states are passing laws you don’t like? Restrict their power to do so. Administrative agencies are tackling climate change? Create new obstacles to their doing so. Cases aren’t making their way through the courts fast enough, or are being mooted by events? Reach out and take them anyway.
This is not a good development. And that is true whether or not it is part of an intentional power grab. Alexander Bickel once called the judiciary “the least dangerous branch.”107 While many have debated whether that is true,108 the premise of the observation stems from the institutional constraints on the Court’s power. Some of those constraints are inherent — the Court doesn’t have an army or a large budget, for instance.109 But many are norms. Appellate courts defer to lower court factfinding.110 They defer to agency expertise.111 They interpret statutes charitably to avoid holding them unconstitutional.112 And they take cases as they are presented to them rather than reaching out to make the law or to change the facts to suit the ruling they would like to make.113 The result is that, as one federal appellate judge put it to me in a private conversation, “I almost never get to do what I really want to do.” Those limits counterbalance the rather remarkable power the Court has had since Marbury to interpret and even reject state and federal laws.
The imperial Supreme Court is dismantling those norms. A Court that rejects stare decisis, that does not defer to considered policy decisions simply because it disagrees with them, that throws out established judicial procedure to take and decide cases that it wants whether or not there is a live dispute or whether the facts or the courts below present those cases for resolution, is much more dangerous. Right now the danger is mostly apparent in the dismantling of political institutions and the withdrawal of individual rights, because the substantive tenor of the conservative majority has targeted those things. And the Court has taken these actions in ways that favor Republican interests and hurt Democratic ones. But even conservatives should be worried about an imperial Supreme Court, which in the future might just as easily swing in the other direction. And if the Court decides next Term that we don’t have a right to elect the winners of elections, as it seems poised to do, it may dismantle the political apparatus of our country for good.
I conclude this Essay by suggesting, somewhat reluctantly, that we must begin to consider some more radical fixes to rein in the power of the Court, including changes to the number and tenure of Justices and limits on the Court’s jurisdiction over certain matters. The objection to those measures — an objection I have long shared — has been that they will undermine the legitimacy of the Court, turning it in the minds of the public into just another political institution and undermining respect for the rule of law. But that ship has sailed.114
A Congress that wants to address this problem has several options available to it. It could directly overrule some of the Court’s invented doctrines such as the “major questions” doctrine. It could also strip the Court of jurisdiction over some issues, though perhaps not constitutional ones.115 And because it could do that, it could probably compel the Court to actually apply the rules of Article III standing in both directions, preventing it from deciding that a right to collect statutory damages from a defendant isn’t a “case or controversy” and perhaps also preventing the Court from reaching out to take cases that aren’t actually presented to it. The issue is not free from doubt, because Article III is a constitutional requirement, but virtually none of the current Article III rules are required either by the history of law and equity or by the language of the Constitution itself.116
Structurally, there may be ways to change the Court that might in the long run restore its tattered credibility. The current composition of the Court is in part a function of brass-knuckle politics by Republicans, who would not have the majority they do had they not behaved in a nakedly political manner in refusing to consider Judge Garland’s nomination and then rushing through Justice Barrett’s. But it is also a function of luck. The fact that Presidents can appoint Justices only upon the happenstance of death or retirement (and, these days, having a Senate of the same political party) has meant that Republicans have appointed eleven Justices in the last twenty years they held the presidency117 while Democrats have appointed only five Justices in the last twenty years they held the presidency.118 The combination of accident (of death) and strategic timing (of retirement) contributes to the political nature of judicial appointments. It also influences the age of the Justices who are picked and means that some Justices serve more than twenty-five years on the Court (including in recent years Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas — all Republican appointees).119
While judges have life tenure, there is no constitutional requirement that they must spend that entire tenure as active members of the Supreme Court, and indeed many Justices retire from the Court but continue to sit on the circuit courts.120 Congress could pass a law that gives each new Justice an eighteen-year term of active service and staggers the appointments so that each President appointed one Justice every two years. Justices wouldn’t be removed from the Court after eighteen years, but they would be able to hear cases only in the lower courts.121 Another possibility — though only a partial solution — would be to separate the Supreme Court into one Court that hears constitutional issues and another that hears other legal questions. Many other countries have such a system.122 While it wouldn’t solve all the problems I have described, it might render the nonconstitutional decisions less political and therefore protect doctrines of equity and private law from being infected by the Court’s power grab.
But any of this requires a working Congress with a will to actually protect our system of government. I fear we don’t have such a thing right now, and it’s not clear we soon will. And that may leave us with the darkest alternative. Responding to the 1832 decision in Worcester v. Georgia,123 President Andrew Jackson is reported to have said “John Marshall has made his decision; now let him enforce it.”124 The immediate danger of the imperial Supreme Court is that it will damage our constitutional system by usurping power that doesn’t belong to it. But the longer-term danger may be the opposite. The Court ultimately exists on the credibility of its judgments, and if it damages that credibility enough, the federal or state governments may decide that they can simply ignore it.125 The Court has always walked a bit of a tightrope when it comes to public approval and government obedience to its mandates.126 It took a flying leap off that tightrope in 2022, and it seems poised to continue its dive in the coming Term, with cases targeting affirmative action,127 the Clean Water Act,128 nondiscrimination laws,129 and the electoral process itself.130 It remains to be seen where things might land.
* William H. Neukom Professor, Stanford Law School; Partner, Durie Tangri LLP. © 2022 Mark A. Lemley. Thanks to Janet Cooper Alexander, Josh Chafetz, Benedict Curio, David Driesen, Blake Emerson, Jeff Fisher, Andy Gavil, Rose Hagan, Pam Karlan, Leah Litman, Chris Sprigman, David Sklansky, Max Stearns, Larry Tribe, Patrick Woolley, Diego Zambrano, and participants in a workshop at Stanford Law School for comments on a prior draft and an anonymous Twitter typo corrector for catching typos.