How the Supreme Court Broke Congress. Atlantic Magazine

Two dynamics are fundamentally reshaping the structure and functioning of the American government. The first, which is quite well known, is Congress’s decline. The second, perhaps somewhat less appreciated but no less significant, is the Supreme Court’s ascent—its expansion of its power into areas previously thought to be off-limits.

These dynamics share a root cause: the partisan polarization that has reshaped American politics over the past four decades. But the connection is deeper and more complex than that. Whereas polarization weakened Congress, it emboldened the Court to dismantle laws and, in the process, undermine Congress’s ability to make laws at all, reinforcing Congress’s sclerosis.

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The citizens and commentators shouting from the sidelines that Congress must act, fix itself, and reclaim its intended role are not wrong. But they miss that the Court has made doing so nearly impossible. The practical result is a Congress caught between paralysis and policing, mostly incapable of translating collective judgment into law and, when it does manage to do so, vulnerable to having its most significant accomplishments—civil-rights enforcement, voting protections, campaign-finance reform, administrative authority—erased by judicial decree. The judiciary, long conceptualized as a check on legislative excess, is now defined by its own excess against legislative charge.

The Court’s usurpation runs deeper than the invalidation of statutes with a liberal cast, though there has been plenty of that. It is curbing a competing source of constitutional interpretation, kneecapping an institution that speaks with its own voice and channels public commitments into durable legal forms. In the name of protecting the balance of powers, the Court is radically refashioning that balance, claiming for itself the final and exclusive authority not only over which laws stand but over who gets to say what the Constitution means.

The relationship between Congress and the Court has never been static. The Framers imagined a system in which “ambition counteracts ambition”—rival institutions checking each other through distinct roles and visions of the public good. That Hamiltonian-Madisonian ideal has waxed and waned over American history. Clashes have at times given way to collaboration. Today it has yielded something new.

Read: Does Congress even exist anymore?

The modern Court’s campaign against Congress began in the late 20th century, amid rising partisanship and institutional upheaval. The Gingrich revolution, ushered into Washington by the 1994 midterm election, reshaped Congress, accelerating party sorting into distant ideological camps and normalizing scorched-earth tactics. The Court was not immune to these forces. Following the Bork confirmation debacle—when the Senate, closely split along party lines, rejected Robert Bork’s nomination to the Court—justices tended to reach the bench only after passing ideological screening systems and bruising Senate battles. Some had worked as political operatives during Republican presidencies or, later, in the bitter Florida recount. As interbranch rivalry morphed into systemic partisan competition, a judiciary dominated by Republican appointees began consolidating its authority at Congress’s expense.

This turn against Congress reflected less a principled commitment to limited federal legislative power than an opposition to what Congress was doing through the New Deal and Great Society. Particularly at risk were congressional assertions of its own interpretation of the Fourteenth Amendment and efforts to enforce that vision in civil-rights laws, as well as regulations of interstate commerce. These were domains where conservative activists had long sought to roll policies back, yet lacked the public support to do so. Jurisprudence accomplished what democratic politics could not.

In the mid-’90s, the Rehnquist Court broke with half a century of post–New Deal deference to federal legislation. In United States v. Lopez (1995), five Republican-appointed justices struck down the Gun-Free School Zones Act, finding that the near-unanimously approved law exceeded Congress’s commerce-clause power. It was the first time since Carter v. Carter Coal Co., issued in 1936 during an epic clash with Franklin D. Roosevelt, that the Court invalidated a federal statute on this basis. Lawmakers had once built bipartisan legislative coalitions; a newly conservative Court now moved to undo them.

Lopez announced an ambition to undercut a larger dynamic separate from the substantive issues of guns and schools: a Congress responsive to public sentiment, attentive to contemporary problems, and transmuting public opinion into concrete action. This ambition grew out of the structural insulation of the Court. Partisan control of Congress rose and fell with elections, whereas control of the Court did not, at least not as directly. As a result, the conservative Court held an advantage in long-game constitutional struggles: its capacity to wait out temporary liberal congressional majorities.

In quick succession, the Court began circumscribing Congress’s ability to define rights and act on its constitutional imagination. Five years after Lopez, in United States v. Morrison (2000), the same five justices struck down important parts of the Violence Against Women Act. Declaring themselves to be “the ultimate expositor of the constitutional text,” they issued a warning shot aimed at Congress’s ability to interpret and enforce the Reconstruction amendments in particular and constitutional law more broadly.

The Court under Chief Justice John Roberts inherited this project and escalated it. What once startled in Lopez and Morrison—the conservative bloc striking down major federal legislation—is now routine. But the Roberts Court, pushed further right by new appointments, has plunged into once-unthinkable territory. Its decisions combine a contempt for negotiated legislative compromise, an insensitivity to the human crises Congress tries to address, and a hostility to multipolar sites of constitutional interpretation.

Few policy domains have escaped unscathed. In the 2010s alone, the Court invalidated core provisions of the Family and Medical Leave Act (FMLA) in an opinion that paid “scant attention to the overarching aim” of Congress to make it “feasible for women to work while sustaining family life,” as Justice Ruth Bader Ginsburg noted in dissent. It uprooted Congress’s design of the federal bankruptcy system, inflicting what Justice Stephen Breyer called “needless additional suffering” on vulnerable people. And it tossed an entire federal sports-betting law, unleashing a wave of financial misery.

Even acts framed as judicial modesty mask great hubris. Consider the Affordable Care Act, the most important domestic law since Lyndon B. Johnson’s Great Society. In 2012, Roberts joined the Court’s liberal justices to spare the law from wholesale demolition; the remaining conservatives voted to strike it down in full. Yet the chief justice’s “upholding” opinion declared that Congress lacked authority under its spending power to enact the assiduously constructed Medicaid expansion. In doing so, the Court gutted one of the ACA’s most ambitious components, denying millions of poor Americans in red states inexpensive health-care coverage.

Most dramatically, the Court has deconstructed the Voting Rights Act, the crown jewel of the civil-rights movement. In Shelby County v. Holder (2013), it demolished the act’s preclearance regime, an effective statutory provision that blocked racially discriminatory election rules before they went into effect. The Court’s evisceration led more voting-rights cases to be brought under another part of the VRA, which the Court then proceeded to undermine in Brnovich v. DNC (2021). A further gutting of the VRA is now likely in a case the Court will hand down this term.

Meanwhile, a constellation of campaign-finance decisions—Citizens United (2010), McCutcheon (2014), and others less well known—dismantled Congress’s two most significant efforts to regulate private money in public elections, eroding the safeguards that protect elections as conduits of public opinion. Here, again, the Court could go further this term, in a case brought by Republicans seeking to lift limits on how much parties may spend in coordination with candidates.

It is a category error to treat these decisions as isolated strikes against discrete statutes. The laws in question reflect something more profound: Congress mediating public constitutional values, drawing on sustained exchange with the people, and articulating constitutional meaning through debate and enactment. In short, they are instances of congressional constitutionalism. By overriding these laws, the Court rejects this rival interpreter’s long-recognized authority to give form to the nation’s evolving and elusive constitutional aspirations in law.

The FMLA was never merely a routine tax-and-spend measure. Its sponsors explicitly advanced a vision of gender equality under the Fourteenth Amendment, one emerging from their constituents and more expansive than the Court’s. Campaign-finance laws likewise do more than regulate money in politics; they embody congressional judgments about the conditions necessary for democratic self-government and meaningful political opportunity. And the VRA—described by legal scholars as a “super-statute”—marks the high point of this tradition: not an ordinary exercise in budgeting, but Congress giving constitutional form to the country’s deepest democratic commitments.

Congress’s constitutionalism carries advantages over the Court’s. Most important, it remains tethered to the public. Elections, however imperfectly, compel lawmakers to listen and respond. When Congress speaks on constitutional affairs, this democratic legitimacy wields an authority that the Court’s rarefied exegesis cannot match. Congress also possesses institutional tools that the Court lacks. Statutes can be comprehensive and prospective; their language can be iterative, granular, and versatile. The FMLA, VRA, and ACA exist because legislators navigated tangled terrain—negotiating, compromising, calibrating demands among plural interests in and outside of the Capitol. Cloistered justices cannot do these things. They adjudicate from a comparatively passive posture, bereft of an enforcement and policy-making apparatus.

The Roberts Court has hollowed out these dynamic sources of congressional constitutionalism. Its voting-rights and campaign-finance decisions have weakened the electoral systems that make Congress responsive to the public. Statutes of this genre, to borrow from the former Yale Law School dean Robert Post, should be thought of as “wholesome legislation that nourishes democratic legitimacy”—measured legislative judgments about the guardrails and ground rules necessary to preserve elections as channels of representation, and public faith in them as such. In dismantling this scaffolding, the Court has left Congress more detached from its electorate, diminishing its claim and role as a representative authority.

The Court has further eroded the conditions that make lawmaking possible. Deregulated campaign finance has produced a political economy in which lawmakers and candidates spend much of their day fundraising. Time that might otherwise be devoted to legislation, oversight, or the slow, unpredictable social interactions that foster bipartisanship is instead siphoned off to “call time” and cocktail hour. Empirical studies confirm that reliance on large donors depresses participation in time-intensive legislative activities—things such as bill sponsorship, floor debate, and committee work. It simultaneously redirects lawmakers’ attention toward courting high-net-worth donors and away from talking to people in their districts.

And then there is gerrymandering. By immunizing partisan-drawn maps from federal-court scrutiny, the Court’s decision in Rucho v. Common Cause (2019) entrenched electoral distortion in American politics. The Court has since doubled down. Last month, Justice Samuel Alito defended Texas’s gerrymandered maps on the grounds that they reflected “partisan advantage pure and simple”—an unabashed apologia for a practice destructive to democracy. Gerrymandering for partisan advantage begets safe seats. Safe seats reward ideologues, marginalize moderate voices, and intensify polarization. They elevate representatives who are less responsive to median voters and less inclined to legislative compromise. Representation thins and drifts toward the extremes, and public confidence in Congress as an accountable institution erodes along with it.

The Court’s expansion of its power vis-à-vis Congress has proceeded on two mutually reinforcing fronts. Methodologically, it has transformed how the Court interprets law.  Substantively, it has redefined what the Constitution forbids, preemptively removing entire policy domains from democratic deliberation before voters and lawmakers can even weigh in.

The Court now rigidly reads legal texts through originalism and textualism, both of which concentrate power in the judiciary, and especially in the Supreme Court. Originalism empowers judges to parse contemporary laws through their own analysis of an “original understanding” of the Constitution’s provisions at the time of adoption. Textualism—which emphasizes the words of a statute themselves to divine an analogous (and equally chimerical) “ordinary meaning”—treats Congress with overt disdain, disregarding lawmakers’ intentions, factual findings, and the problems they sought to address.

As part of this textualist counterrevolution, the Court has invented new rules and discarded old ones to second-guess legislative choices. The so-called major-questions doctrine, announced from whole cloth in West Virginia v. EPA (2022), lets judges strike down agency actions based on their own subjective calls about which legal questions involve “vast economic and political significance.” More recently, the overturning of Chevron deference in Loper Bright (2024) gives judges new bases to substitute their preferred interpretations for those of expert agencies acting on congressional will.

The Court has also interpreted certain constitutional rights so broadly as to strip Congress—and, crucially, the people who act through it to advance their constitutional visions—of the power to address pressing social problems. For example, its expansive, libertarian reading of the First Amendment, which it has used to knock down labor-organizing protections and public-accommodation laws, doesn’t just embrace a dubious account of what speech is; it forecloses forms of regulation and redistribution historically left to the democratic arena. And its Second Amendment jurisprudence now blocks some of the most effective legislative interventions to combat gun violence.

The power grab extends to the mechanics of lawmaking itself. For decades, the Court allowed Congress to design statutes with flexibility, including by creating independent agencies to handle complex issues requiring expertise. The Roberts Court is unraveling that discretion, discovering fatal constitutional problems in arrangements that had stood for generations. Trump v. Slaughter, argued last month, is poised to join a long line of cases, including Free Enterprise Fund v. Public Accounting Oversight Board (2010) and Seila Law v. Consumer Financial Protection Bureau (2020), in which the Court has invalidated congressionally created independent agencies. This project shrinks the space for legislative creativity in confronting and solving problems.

Finally, the Court has constrained Congress’s authority to define rights and check executive power. TransUnion v. Ramirez (2021), for instance, curtailed Congress’s ability to create enforceable legal rights—a core legislative function—when it limited consumers’ ability to sue over inaccurate reporting of financial information. Trump v. United States (2024) radically expanded presidential immunity, further limiting Congress’s capacity in another core function: overseeing and constraining the executive.

For now, the supernova of Donald Trump’s presidency has muted this systemic conflict in public view. His second term—defined by galloping abuses of executive power buttressed by Trump v. United States—has played out against a Republican Congress and Republican Court aligned, if not enthralled, with him. But this alignment is likely temporary and contingent. Should a Democratic Congress return, the conflict will roar back into view.

Paul Rosenzweig: The Supreme Court’s inconsistency is very revealing

The short-term convergence of the branches should not obscure the larger transformation: Congress is no longer the first branch of government. The same gale-force winds of polarization that split Congress into warring camps has also produced a Republican-appointee-dominated Court systematically constraining congressional power while expanding its own.

The Court alone is not responsible for all causes of Congress’s decline. Partisan polarization predates the Roberts Court and has deep structural roots in geographic sorting, media fragmentation, and the fusion of personal identity with politics. The distorting design of the Senate and the Electoral College, the filibuster’s persistence, and centralized leadership have all contributed to legislative ossification. But the Court has made things worse. Its hard-right jurisprudence is an outgrowth of polarization and an accelerant of dysfunction.

A constitutional democracy cannot survive on judicial pronouncements alone. It requires institutions capable of translating popular commitments into lasting legal forms through deliberation and compromise. In other words, it needs a functioning Congress.

This capacity to translate democratic and constitutional aspirations matters not because legislative majorities are always right, but because certain national challenges cannot be deferred or ignored indefinitely, and because judicial supremacy cannot substitute for self-governance. When the Court claims exclusive authority over constitutional meaning while systematically weakening the federal institution most responsive to the people, it does not preserve the constitutional order. It ends it.

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About the Author

Duncan Hosie

Duncan Hosie is a fellow at Stanford Law School.