Will the Supreme Court Decide This Election?

October 30, 2024:

This piece first appeared in our weekly newsletter, The Fallout.

It’s the last full week before the 2024 election, and honestly, I’m not thinking about the candidates or how abortion is going to fare on the ballot. I’m focused on the Roberts Court and the rot of lawlessness that’s taken hold. Starting first with Roe v. Wade, the Court’s conservatives have become almost obsessed with overturning decisions they don’t agree with. They’ve gone for everything from upending abortion rights to erasing the power of federal agencies to interpret their own regulations.

Just as the conservative legal movement is using the Dobbs v. Jackson Women’s Health Organization decision and Roe’s reversal to come for a host of other rights, the Roberts Court is poised to craft a direct line from overturning progressive legal precedent to potentially overturning the will of the voters. Between issuing a flurry of immunity wins for Donald Trump at the end of last term to the stream of 2024 election-related petitions already finding their way to the Court this week, there is a lot of time for the Court’s conservatives to create chaos for purely partisan goals. And lets not forget that three of the Court’s current justices—Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett—all worked for Republicans who successfully tilted the 2000 election to the GOP in the historic Bush v. Gore challenge.

I’m not trying to be an alarmist here. But we can and should think of the Court’s conservatives as self-interested partisan actors in this election, because that’s exactly who they’ve shown themselves to be. Back in 2021, before the Dobbs case had even been argued, Rewire News Group published a special edition called “Power Grab” where we explained how the conservative legal movement—with its co-conspirators on the Supreme Court—would use the overturn of Roe to come for a host of other rights, and even democracy itself. Since then, the Court overturned Roe, appears ready to use that precedent to upend trans rights later this term in the Skrmetti case, and has played footsie with fascists to greatly expand presidential power.

Despite ethics scandal after ethics scandal, the Court’s conservatives have made it clear they don’t see themselves as accountable to the public. Does that mean they don’t have to answer to voters as well? We could very well find out this election.

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