The Supreme Court’s end-of-term blockbuster cascade of
decisions marked new heights of the right-wing majority’s lust for power over
the other two branches of government, especially Congress; its disdain for the text
of laws and the Constitution and their Framers; and its exhuming of doctrinal artifices,
long simmering within the conservative legal movement after being beaten
back decades ago.
But court-watchers have overlooked what may well prove to be
the single most radical, atextual, consequential—and, for long-standing
liberal programs and constituencies, most catastrophic—decision of the term.
This is the June 23 decision in Landor v. Louisiana Dept. of Corrections and Public Safety.
Here, the court denied a federal prisoner, Damon Landor, the right to sue
prison guards for damages for knowingly violating a federal statute, by
forcibly shaving off dreadlocks prescribed by his Rastafarian religious tenets.
The court split 6–3 along partisan and ideological lines, with Justice Neil
Gorsuch writing the majority opinion with no qualifying concurrences.
This lockstep unanimity prevailed, although Gorsuch’s
radical rationale flouted positions previously joined or penned by four of his
conservative colleagues—including himself—as recently as a three-year
old 7–2 decision in which all the conservative justices other than Clarence
Thomas and Samuel Alito joined an
opinion for the court written by liberal Justice Ketanji Brown Jackson. This
June, in Landor, Jackson wrote a dissent fiery by even her high-decibel
standards, in which the other two liberal justices, Sonia Sotomayor and Elena
Kagan, joined; she excoriated decades of the court’s ever more right-shifting
precedents.
Media reports on Landor noted its result—that it
canceled the ability of inmates in state prisons to enforce in federal
court the provisions of a 2000 federal statute requiring states to accommodate
inmates’ religious tenets and expressly conferring on them the right to
sue and obtain “appropriate relief.”
But the greater import of the decision lies not in its
result but in its rationale. Justice Gorsuch exhumed a theory first surfaced in an
outlier 2001 decision, Westside Mothers v. Havemann, by a Michigan
federal district judge, scornfully reversed by a unanimous Sixth Circuit Court
of Appeals panel and a dead letter ever since. In the words of the only
published recognition I have found of the earthquake potential of this term’s Landor
rationale, professor Steven Vladeck wrote, the “Westside Mothers theory
was treated as a long-shot attempt to rewrite the Constitution—one that failed.”
This theory is that a federal law implementing Congress’s authority, enumerated in the first sentence of Section 8, Article 1 of the
Constitution, to raise and spend funds “for the general welfare of the United
States”—is not a law at all but a mere contract offer to potential
recipients of federal largesse. As such, the theory goes on, in another leap
similarly untethered to constitutional text or discernible logic, individuals
cannot sue any nonconsenting state agency or official who violates conditions prescribed
in such spending laws—and Congress cannot constitutionally authorize
such suits, as a “necessary and proper” means of ensuring compliance with the
conditions.
For the past century and a half, individual suits have been
authorized by a Reconstruction-era statute to redress state officials’ violations
of federal law. That statute, widely known as Section 1983, provides that “every
person who, under color of law,” deprives any person “of any rights secured by
the Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.” As noted above,
only three years ago the court brushed aside a defendant’s invitation to “reject decades of precedent, and to rewrite Section 1983’s plain text to read ‘laws
(unless those laws rest on the Spending Power).’” But on June 23 of this year,
five justices joined a decision expounding precisely that constitutional
rewrite.
The largest class of victims of this volte-face will
be Medicaid beneficiaries. Medicaid (including the Children’s Health
Insurance Program, or CHIP) is the largest public or private health insurance
program in the U.S., covering
82 million individuals, 25 percent of non-elderly Americans, three of five nursing
home residents, and 40 percent of all births. All in all, we’re talking about $931
billion worth of expenditures in 2024; approximately two-thirds from federal
coffers, the remainder from states.
Over the decades since Medicaid was enacted in 1965 as part
of President Lyndon Johnson’s Great Society, major provisions have been held to
“create rights” enforceable via Section 1983. These include the safeguards
vindicated in the aforementioned 7–2 2023 Supreme Court decision, that nursing
homes not deploy “physical or chemical restraints for convenience or
discipline,” nor “transfer or discharge patients [without] advance notice.” Landor’s
head-scratching “contract” theory gutting conditional spending laws first
reared its head 25 years ago amid an aborted boomlet of challenges to court
enforcement of Medicaid conditions.
Medicaid
is by no means the only program threatened by this legal theory. Myriad
programs vital to millions of Americans deploy the “cooperative federalism” template
that structures Medicaid. To name a few such landmark programs: Title VI of the
1964 Civil Rights Act bars any state or local government, any subunit of which
receives federal funds, from discriminating on the basis of race, color, and
national origin. Title IX of the 1972 Federal Education Amendments bars sex
discrimination in any entity operating an educational institution or program
receiving federal funds—which in practice is every educational institution in
the nation.
Most U.S. environmental laws “work through” cooperative federalism
arrangements. The Clean Air Act, for example, as described in May 2025 by the
Congressional Research Service, “establishes a framework whereby [the Environmental Protection Agency] is responsible for establishing various nationwide standards, and states bear
primary responsibility for implementing those standards, including by
regulating on a source-by-source basis.” This list is hardly exhaustive.
As Justice Thomas noted in dissenting from the court’s 2023 affirmation of
individual court enforcement, “other examples, spanning virtually every domain
of national and state policy, abound.”
And such individual enforcement has long been recognized as
essential to rendering federal guarantees effective. The conservative justices
purport to disagree. In Gorsuch’s Landor opinion and on prior occasions,
they have asserted that when a state violates federally prescribed conditions,
“the typical remedy” is not a private enforcement suit “but rather action by
the Federal Government to terminate funds to the State.” But that premise is
not only factually false, it is transparently disingenuous, as Gorsuch and his
savvy conservative colleagues well know.
“In practice,” as Jackson’s Landor dissent notes, “[the Department of Health and Human Services] rarely invokes its authority to withhold funding because doing so would
inevitably harm the program’s beneficiaries”: the poor, working-, and middle-class Americans who depend on Medicaid for health care. Stripping beneficiaries
of their ability to redress state officials’ violations of federally set
conditions strips Congress of its most effective—perhaps only effective—tool to ensure that those conditions are not empty paper promises but
life-sustaining benefits for individuals and families.
However baseless and contorted, this “spending-clause-laws-are-actually-not-laws”
theory gives opponents a handy backdoor ploy to kneecap popular programs
without provoking the blowback expectable from overt invalidation or repeal.
The theory did not spring from nowhere. Indeed, its acceptance was foreshadowed
in 2004, in a cryptic concurring opinion by Samuel Alito when he was a judge on
the Third Circuit Court of Appeals. Obviously, it has been a bee in his bonnet
ever since. Nor was Alito alone. States’ rights devotees had
long recognized that, as libertarian Texas law professor Lynn A. Baker spotlighted in
1995, “the greatest threat to state autonomy is, and has long been, Congress’
spending power.”
In 2008, after the dust
settled from the failed attempt to subvert that power, spending clause expert
Samuel Bagenstos, then a Michigan Law School professor and recently general counsel of President Joe Biden’s Department of Health and Human Services,
spelled out the carnage that would follow, should any such attempt succeed in
the future. Applied literally according to its terms, Bagenstos
detailed, that construct “would bar Congress from giving a Spending Clause
statute preemptive effect, authorizing a private right of action for its
violation, and enacting additional laws necessary and proper to carrying it out.”
Bagenstos predicted that anti-entitlement
ideologues would keep looking for ways to
constrain federal conditional spending authority, but would stop short of the Westside
Mothers wrecking-ball extreme.
Until this past June, Bagenstos’s forecast seemed on track—though looking back, there were signs the court’s
anti–conditional spending members were straining at the bit. Jackson’s 2023
majority opinion held that two Medicaid provisions “do unambiguously create Section 1983-enforceable
rights,” and mocked the notion that “1983 contains an implicit carveout for
laws that Congress enacts via its spending power.”
But Jackson included a
nod to conservatives’ oft-repeated riff that, “for Spending Clause legislation,
we have recognized that ‘the typical remedy for state noncompliance is not a
private cause of action for noncompliance but [termination of] funds to the
State.’” In retrospect, for the four conservative colleagues who joined Jackson’s
opinion, that boilerplate was deadly serious. More pointedly, Justice Gorsuch added a terse concurrence stating that,
though he agreed that the Medicaid provisions before the court constituted “a
law,” not a mere “contract,” nevertheless there was an issue “lurking here …
not fully developed by the parties,” hence a “question for another day.”
That question, he wrote,
was whether the specific “rights-creating” Medicaid provisions enforced by the court were “secured” by the statute, as phrased in Section 1983. In retrospect,
that mind-numbing hyper-technical aside was an invitation to conservative
litigators to “fully develop” an argument that could in a subsequent case flip
Gorsuch’s vote.
Unsurprisingly,
Gorsuch’s audience got the hint. Two years later, in 2024 they took his
“secured by” work-around gimmick back to the court. Seizing this opportunity, the
conservative justices, regretting that they had given Jackson too much leeway
in Talevski, improvised a wrenching course correction.
The new case was Medina
v. Planned Parenthood South Atlantic. Here South Carolina was alleged to
have violated a Medicaid provision guaranteeing coverage of patients’ choice of
any “qualified” provider, after the state had dropped Planned Parenthood from
its list of reimbursable providers. A 6–3 Supreme Court majority threw out the
suit. While South Carolina had indeed violated Medicaid’s qualified provider
condition, the flipped majority acknowledged, challengers must demonstrate, at
a minimum, that a provision “does not just seek to benefit them or serve their
interests but ‘clear[ly] and unambiguous[ly]’ gives them individual federal
rights.”
Then the majority went
on to add an additional, startling wrinkle. While other major decisions dating
back to 1980 had mandated individual enforcement of spending clause conditions,
they wrote, neither those earlier cases nor the Planned Parenthood case before
them involved statutory terms as literally “rights-creating” as those at issue
in their 2023 grant of individual enforcement authority. Hence, they ruled, all
the court’s pre-2023 jurisprudence was irrelevant: “The statutes at
issue in Talevski supply the only reliable yardstick against which to
measure whether spending-power legislation confers a privately enforceable
right.”
Jackson angrily
dismissed, as a bait-and-switch, this crumpling of her Talevski precedent
to its precise facts. “That view,” she thrusted, “distorts beyond recognition”
the long-standing test applied in that decision “and strains our precedential
holding that [Section] 1983’s unqualified use of the word ‘laws’ means exactly
what it says.”
When the next shoe
dropped, this past June, Jackson and her two liberal colleagues amplified their perception
of betrayal, branding the majority’s “severance of right and remedies a sleight
of hand [that] magically transforms a federal statute into an invitation to be
accepted or declined, deemed binding only if each particular defendant has
explicitly agreed to be penalized.”
To be sure, in his Landor opinion’s conclusion, Gorsuch
included some confusing bobs and weaves—perhaps a signal that at least some
of the six conservative justices want wiggle room to leave open the option of
zagging back from the brink of a scary precipice. Their ambivalence was called
out, acidly, in Jackson’s conclusion to her dissent:
Today’s decision might well land a
serious blow to Congress’ effectiveness. Or it could end up merely a bothersome
statutory drafting guide: If Congress adapts its Spending Clause legislation to
fit the Court’s newly prescribed formulas—and if the Court lets it do so—then
the majority’s robotic importation of contract principles will have little
real-world effect.
Jackson made clear her bottom line: “Either way, the
suggestion that [spending clause] statutes are not ‘law’ on the same level as
other pieces of legislation makes little sense.”
Will the justices feel obliged to take Jackson’s latter, innocuous
option? The answer is up to liberal leaders. Their pundits, advocates, and—especially, politicians—need to step up to the plate, warn the public about
the scale of this threat from an imperialist Supreme Court majority, and confront
the conservative justices with credible political retribution if they don’t
rein themselves in.
This is a tall but not insuperable challenge. In the relevant
past, against blatant overreach by the Supreme Court’s right, congressional
leaders have deployed trenchant critiques and well-crafted reform proposals.
These pushback efforts induced dramatic—if temporary—pullbacks by the conservative justices.
Two decades ago, Democrats and Republicans on the Senate
Judiciary Committee, led by Republican Chair Arlen Specter, used confirmation
hearings to grill
Supreme Court nominees Roberts and Alito on how conditional spending and other conservative
jurists’ made-up gutting stratagems “plucked out of thin air” constituted the
“very essence of judicial arbitrariness and activism.” To finesse this
fusillade, Roberts went out of his way to denounce multiple right-wing
doctrinal favorites, including those marginalizing conditional spending
guarantees now revived this term with his assent.
Three years ago, facing bipartisan clamor for judicial
reform, especially term limits and Supreme Court conflict-of-interest safeguards,
the conservative justices, in particular Roberts, startled observers by backpedaling
from prior opposition to iconic liberal enactments and decisions. Roberts
repudiated an election-canceling theory he had endorsed eight years prior—that
the Constitution confers exclusive, uncheckable power on state legislatures to
select presidential electors, free from constraint by state constitutions,
judges, governors, or voters. For a 6–3 majority, Roberts reaffirmed a 2015
decision in tension with that antidemocratic theory, a 5–4 decision to which he
had written a dissent; most telling, eight years later, he embraced that decision’s
“core principle: redistricting is a legislative function … with the State’s
prescriptions for lawmaking, which may include the referendum and the
governor’s veto.”
Even more “surprising” was, as noted by liberal columnist Jonathan Chait, a 5–4
majority’s “expansive” interpretation of the 1965 Voting Rights Act, or VRA. Roberts, infamous for career-long
bitter hostility to the VRA, lauded that act for “creating stringent new
remedies attempting to forever banish the blight of racial discrimination in
voting.”
In 2023, the court adopted a code of ethics substantially
identical to that covering the rest of the federal judiciary. Although the code
lacked a meaningful enforcement mechanism, for these life-tenured justices—who
for decades had spurned a code of conduct as unnecessary, useless, and
unworkable—“this abrupt 180-degree about-face was grudging surrender to
reformers’ superior political momentum,” as I wrote at the time.
Not coincidentally, that same term saw the 7–2 Talevski decision
that appeared to repudiate the very doctrine gutting court enforcement of
conditional spending protections revived this term.
The court’s overreach this past term can likewise be turned
back. Indeed, the reactionary justices’ palpable arrogance and indifference to law,
legal logic, their own recent precedents, and the needs of virtually all
Americans, present opportunity no less than challenge. But this time, liberals
and rule-of-law-faithful independents and Republicans will have to mobilize
support to make real reform, with teeth, a credible political priority
and stick with it. In this article, there isn’t enough space to write the
playbook for what needs to happen from here. But for starters:
- Spotlight the dire threat the justices’
rightward tack poses to priority needs of millions of individuals and families
who to date have paid little or no attention to the court’s machinations. - Spell out the impact on ordinary people’s
budgets and lives of gutting vital programs, especially Medicaid, at a time when reactionary politicians, with assistance from their judicial allies, are redistributing
wealth upward to billionaires. - Retail the liberal justices’ searing sound-bite critiques,
such as Justice Kagan’s 2023 riposte to “we-are-not-a bunch-of-partisan-hacks” protestations
by Amy Coney Barrett and Roberts. To that, Kagan shot back, “The court
shouldn’t be inserting itself into every hot button issue in a way that
reflects one set of political views over another.” - Call out the reactionary justices—and brand
them “reactionary,” not “conservative”—for playing fast and loose with what
the Constitution and laws actually say, with the democratic republic their
architects designed, with the justices’ own precedents, and for breaking their promises,
in particular Chief Justice Roberts’s confirmation commitments noted above, which he now cynically sidelines as mere job interview pretense.
Evidently, the justices on the court’s right are riding high
on what they seem to regard as a de facto equivalent of the immunity they awarded
presidents in 2024. They would do well to take on board the admonition voiced a
half-century ago by the revered Justice Robert H. Jackson, “We are not
final because we are infallible, but we are infallible only because we are
final.” If liberals and rule-of-law-treasuring allies puncture the
public’s perception of Supreme Court infallibility, they can pare back its
finality.
