This is part of Opening Arguments, Slate’s coverage of the start of the latest Supreme Court term. We’re working to change the way the media covers the Supreme Court. Support our work when you join Slate Plus.
In our years covering the Supreme Court, we have both slowly grown to despise the obligatory journalistic “curtain-raiser” that drops at the start of each new term. Academic review of the seven or eight ostensibly “big” cases as a set of horse-race questions inevitably misses and occludes the bigger picture: the way in which the majority selects certain cases to further a specific agenda, and times the announcement of its decisions to minimize backlash to that agenda. At this point, the standard curtain-raiser listing out the important cases and handicapping how they may turn out next June feels somewhat analogous to fretting over the results of seven isolated chemistry experiments, without ever reckoning with the fact that the lab, the test tubes, the Bunsen burners, and six of the nine scientists doing the work have all been purchased by a clutch of billionaires in order to set the lab on fire. Or that the billionaires will be at some luxury resort sipping glacier martinis with several of those same scientists over the weekend.
This term, after all, is opening under the cloud of rolling ethics scandals that cut to the heart of the court’s legitimacy. A decadeslong pay-to-play scheme that gave wealthy donors access to Justice Clarence Thomas is poised to culminate in a major victory for deregulation. A contrived attempt to kill a “wealth tax” before it’s even passed—cooked up by a confidant and vociferous defender of Justice Samuel Alito—could insulate the ultrawealthy from future taxation. Meanwhile, a wholesale assault on the administrative state could enable mass financial fraud or trigger another Great Depression. Toss in a case that seeks to give people a right to possess firearms while under a restraining order for domestic violence, plus a likely showdown over medication abortion, and this term starts to look downright devastating.
So no, these are not isolated chemistry experiments that should be dispassionately observed in order to derive neutral scientific principles. They are an explosive brew of lawless fury aimed at the heart of modern American governance. The main question, or better the “major question,” at the outset of this term, then, is not if we should be worried, but exactly how worried we should be. And the answer to that question depends largely on how much disgust a majority of the court feels when it looks into the fun-house mirror that is the even more ultraconservative U.S. Court of Appeals for the 5th Circuit.
Why the 5th Circuit in particular? Because that court—which covers Louisiana, Mississippi, and Texas—has become ground zero for unhinged MAGA jurisprudence, and a testing ground for the most dangerous and radical ideas to emerge from the conservative legal movement. Donald Trump installed six judges on the bench, including some of the most extreme jurists in the country, such as James Ho, Andrew Oldham, Kyle Duncan, and Cory Wilson. Already conservative, the 5th Circuit transformed into a farce of a court under Trump, empowering hard-right militants like Judge Edith Jones to drive the judiciary straight into the abyss. As it did last term, the Roberts Court will spend much of its upcoming term calculating how far it will let the 5th Circuit contort the Constitution to satisfy the fringe-right faction of the Republican Party.
It’s a delicate dance: All of the justices on the right flank of the court support in principle the deregulatory, pro-business, vote-suppressive, pro-gun agenda of the appeals court’s nuttiest fringe. But the exigent questions around how far they wish to be prodded from courts below, and how much of their precious remaining public confidence they wish to squander, means that the cases before them are analyzed not so much for neutral legal principles as for strategic, publicly acceptable gains for Leonard Leo’s Christmas list.
There’s no better place to start than with Zackey Rahimi, a recipient of the 5th Circuit’s highly selective beneficence. In 2019, Rahimi and his girlfriend were arguing in a parking lot when he threatened to take away their child. His girlfriend tried to leave, so he grabbed her, threw her to the ground, dragged her back to his car, forced her inside, and slammed her head against the dashboard. When he noticed a potential witness nearby, he grabbed his gun and fired at him. He threatened to shoot his girlfriend if she told anyone about the assault. A few months later, the girlfriend persuaded a judge to grant a restraining order against Rahimi so he could no longer terrorize her or her child. He not only violated this order, but embarked upon a crime spree that included five separate shootings. Federal prosecutors eventually charged him with possessing a firearm while subject to a restraining order for domestic violence, a felony under federal law.
The 5th Circuit threw out the charge in an opinion written by Wilson and joined by Jones and Ho. Wilson relied on the Supreme Court’s 2022 Bruen opinion, which held that modern gun restrictions are unconstitutional unless they possess a sufficient number of “historical analogues” from the 18th and 19th centuries. Of course, brutal domestic violence was not generally treated as a crime in that period, but as a private affair and in fact a general entitlement if you were male. Because, following the logic set forth in Bruen, since “our ancestors would never have accepted” a law disarming a man who, say, smashed the mother of his child’s head into the dashboard of a horse-drawn buggy, the nation may not enact one today.
This decision is obviously horrific; it would, if upheld, ensure the deaths of countless women and children. But on some level, Wilson has a point: The original sin here is Justice Clarence Thomas’ opinion in Bruen, which lashed contemporary firearm laws to an unenlightened era of misogyny and racism. Bruen really does suggest that Wilson reached the right result. Yet that outcome is surely too grotesque for the Supreme Court to affirm—right?
We can only hope, and that’s the point: Progressives must now fall over themselves begging the court to walk back its own atrocious decision from just last year. And if it does, much of the left will feel obligated to praise the court for not giving domestic abusers another opportunity to murder their families.
The same deranged boundary-pushing goes for every other 5th Circuit case that’s landed on the Supreme Court’s docket this term. In one decision, the 5th Circuit interpreted SCOTUS’ free-floating hostility toward the administrative state as offering up a green light to literally abolish an entire federal agency, the Consumer Financial Protection Bureau. Three Trump-appointed judges concluded that, because the agency draws its budget from the Federal Reserve rather than annual congressional appropriation, it somehow violates the Constitution. This theory would set off a housing crisis likely to spark a massive recession and empower judges to gut Medicare and Social Security. It directly contradicts the text of the Constitution and has never been applied by any court at any point in the history of the republic. Neither, for that matter, has the 5th Circuit’s theory that the Securities and Exchange Commission is fundamentally unconstitutional because it imposes civil penalties on financial fraudsters through administrative adjudication.
Will the Supreme Court endorse these cockamamie theories and blow up dozens of federal agencies? Or will it just take the seemingly more moderate path of overturning Chevron deference, stripping expert agencies of the power to interpret statutes? If the court does take this second path, it will be counting on the mainstream media narrative to describe this as a “compromise,” or “moderation.” Let’s not: Overruling decades of precedent and giving unelected judges turbocharged authority to kill off regulations would be a shattering blow to the administrative state. That’s why the Koch brothers spent years cultivating a relationship with Clarence Thomas and inculcating him into circles where Chevron is seen as the work of the devil.
The devil plays a huge if unspoken role in a final 5th Circuit case that SCOTUS will almost certainly take up this term: Far-right Christian nationalists’ effort to outlaw mifepristone, the first drug in the two-drug medication abortion protocol, across all 50 states. No, we do not think the devil is behind this lawsuit. But the plaintiffs—a group of anti-abortion doctors whose claim to standing rests on their free-floating abhorrence of medication abortion—sure do. This suit, concocted by Alliance Defending Freedom, is a brazen attempt to transform religious fundamentalism into a cudgel against safe, effective health care. (We’ve been here before.) Last spring, the 5th Circuit played ball, trying to jam SCOTUS into shutting down easy access to mifepristone even in blue states. This, just a year after SCOTUS promised to leave abortion policy up to the democratic process in each individual state, or in Congress.
It seems likely that the justices are going to kill the whole case on standing, since the plaintiffs’ personal hatred of abortion cannot possibly give them leverage to restrict it nationwide by judicial fiat. But really who knows? Unfortunately, such common sense from this Supreme Court is no guarantee. And again: If the justices smack down the 5th Circuit, no one should dare deem this glimmer of sanity to be a moderate decision, even as many commentators gush about the court’s sudden centrism.
The same goes for an upcoming showdown between red states and the social platforms they hate. Buying into the objectively false belief that these platforms censor conservatives, Republican lawmakers in Florida and Texas passed sweeping laws prohibiting them from moderating hateful speech, including terrorist recruitment and Holocaust denial. The U.S. Court of Appeals for the 11th Circuit sensibly blocked Florida’s law as an obvious infringement on the platforms’ own First Amendment right to decide what speech they will host. Yet the 5th Circuit, in a defiant opinion by Oldham, veered the other way, holding that platforms have no constitutional right to publish or unpublish expression as they see fit. The Supreme Court will resolve that split this term, though the writing is on the wall: A majority already froze the 5th Circuit’s wild decision, keeping the Texas law on ice. That same majority will now have to tell Oldham, in language suitable for a preschooler in time-out, that corporations don’t lose their First Amendment rights just because the Federalist Society has turned against them.
Do not even get us started on what may happen this year as the raft of Trump criminal cases, civil cases, disqualification cases, and election cases rocket up to One First Street. Who knows how many justices are excited at the prospect of four more years under the thumb of a man who kind of wants his former Joint Chief of staff to be executed? Our money’s on at least a few.
We understand the impulse to spend the run-up to a new Supreme Court term engaged in ponderous academic deconstruction of whether “the law” allows for one outcome or another in these disputes. But we are on year three of a constitutional revolution, and squinting too hard at a fistful of isolated cases on the docket blurs out the tectonic shift that has already happened at the court itself. Those shifts include the jettisoning of precedent, the invention of amorphous new “tests,” the newfound solicitude for dummy plaintiffs with no real standing to win cases pivoting the country toward greater religious extremism, and the casual acceptance of the fact that some of the justices work for the country and others work for the oligarchs. The cases teed up for decision are grim. Where they came from and who funded them and why so many radical new ideas and “doctrines” and theories are suddenly being entertained by this court are more important than the grotesque case law they will someday produce.