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Every day, Americans are witnessing the most significant expansion of presidential power in modern times. Just as important, and less obvious, is the other significant shift that is occurring in our system of government: the Roberts Supreme Court is systematically stripping away power from Congress, the directly elected representatives of the people.
This erosion of congressional authority is not happening by accident; it is the direct result of steady, calculated intrusions into Congress’ constitutionally designated role – to write the laws, allocate funding, and set federal policy for the nation.
What the court has accomplished is something subtler and potentially far more permanent than a sudden coup: it has radically narrowed Congress’ ability to shape how laws are interpreted, implemented, and defended after they are enacted. But Congress must not take these incursions on its power laying down. If the Roberts court has said that congressional powers long assumed by both parties to be implied don’t exist, Congress should restore the status quo by legislating them into existence.
The court’s attacks on congressional power have not come through its monumental decisions regarding reproductive freedom, firearms, or presidential immunity. Instead – and more quietly – the court is also attempting to strip Congress of its authority to carry out its most important function: make laws for the benefit of the American people, where the voting population can hold the elected officials who make those laws accountable through the ballot box. As described below, the unelected members of the court weakened this core relationship between the American people and their government by dismantling pro-democracy voting rights laws, inventing new judicial doctrines out of whole cloth to reject duly enacted laws, rejecting administrative expertise, permitting the president to fire the heads of otherwise independent agencies, and dismissing legislative history as a tool for interpreting the legislative intent behind congressional action.
Taken together, this arrogation of power upsets the careful system of checks and balances created by the founders, elevating the court above Congress, a “co-equal” branch of government where the founders believed policy decisions should be made. These judicial interventions have made it harder for Congress to protect civil rights, voting access, and the environment. What is worse, they position the judiciary as America’s primary policymaking body, a role the founders never intended for the courts.
Weakening voting rights laws
The court’s recent decision in Louisiana v. Callais attacking the Voting Rights Act is just one example of how the Roberts court has dismantled a critical legislative milestone of the last 60 years. Originally passed with strong bipartisan support, the VRA was subsequently reauthorized on five separate occasions with overwhelming congressional majorities.
The Roberts court’s VRA jurisprudence reveals the first tool used to dismantle our constitutional infrastructure: a blatant disregard for legislative history. Leading up to the law's 2006 reauthorization, Congress engaged in extensive fact-finding on the importance of maintaining “pre-clearance,” which required jurisdictions with a history of racial voter disenfranchisement to seek review by the U.S. Department of Justice before altering electoral practices. In its 2013 Shelby County v. Holder decision, the court brushed aside this exhaustive record, overriding the legislature’s explicit statutory designs and its constitutionally delegated authority to enforce the 15th Amendment’s protection of the right to vote for all eligible Americans.
In Callais, the court explicitly rejected the legislatively crafted framework used to challenge racially discriminatory voting practices. This framework, championed by Republican Sen. Bob Dole during the 1982 VRA reauthorization, was designed to provide a balanced approach to proving discrimination. Members of Congress had carefully weighed competing interests to secure a bipartisan compromise, recognizing that a litigant could succeed in challenging a particular voting law or practice if it had a discriminatory effect even if he or she could not prove there was an explicit discriminatory intent behind it. Rather than approaching the issue with humility and deference to the lawmaking body, the court’s conservative majority imposed its own test for VRA violations, rejecting this legislative compromise and substituting its own judgment for that of the branch empowered by the Constitution to make these choices.
Complex laws emerge from compromise. Legislators frequently agree on broad statutory language precisely because they cannot resolve every future technical application in advance. Committee reports and explanatory statements have historically helped courts understand the precise policy problems Congress sought to address and the practical tradeoffs underlying legislative bargains. But the Roberts court appears unconcerned with the difficult mechanics of lawmaking, preferring to impose its judicial will beyond the limits of its appropriate constitutional role – which is to interpret the law, not to invent it.
Stephen Breyer, who served as chief counsel to the Senate Judiciary Committee before joining the Supreme Court, understood firsthand how legislation is assembled. In his book Active Liberty, he argued that courts must consider statutory purpose because law cannot be decoupled from the democratic objectives that produced it. In other words, a statute divorced entirely from legislative context risks becoming less an act of democratic governance than an exercise in judicial linguistics.
Dismantling administrative agencies
We see a similar phenomenon in the court's rejection of congressional authority to delegate power to administrative agencies. In West Virginia v. EPA, the court held that agencies addressing questions of “vast economic and political significance” must identify explicit, granular congressional authorization for their actions. (This demand is deeply ironic given the court’s simultaneous rejection of granular fact-finding by Congress in its prior reauthorizations of the VRA.) Under this newly invented “major questions doctrine,” the court seemingly “knows it when it sees it,” leaving the rest of the country to guess when Congress has provided exactly the right amount of linguistic precision to make an authorization stick. If Congress had known for the last several decades that such granularity was a requirement when drafting such legislation for it to have an impact, they likely would have included it when writing these laws.
The practical effect of this doctrine is difficult to ignore. When courts invalidate regulatory actions because a statute passed decades earlier lacks hyper-specific phrasing and Congress might have failed to fully anticipate how technology and scientific knowledge and expertise all evolve, the judiciary gains veto power over modern governance. Questions involving climate policy, financial regulation, workplace safety, consumer protection, telecommunications, artificial intelligence, and biotechnology increasingly turn not on what Congress enacted, but on whether a panel of justices, sitting in judgment far from the process of legislative fact-finding, deliberation, and compromise, believes the text is sufficiently explicit in its directives.
Similarly, in Loper Bright Enterprises v. Raimondo, the court overturned its own 40-year-old precedent, Chevron v. NRDC, which dictated that courts should generally defer to government agencies when those agencies are asked by Congress to exercise their technical expertise in a complex field. By dismantling Chevron, the court ensured that federal judges now exercise ultimate authority over complex regulatory disputes that Congress explicitly expected agencies – backed by deep institutional experience and teams of technical experts – to manage.
With complex topics like the environment, consumer affairs, or the financial system, when Congress creates an agency to carry out important regulatory practices to protect the American people, it does not abandon oversight of those agencies. Congress authorizes and reauthorizes agency mandates. It appropriates funds directly for virtually all executive operations. It also maintains a robust web of oversight mechanisms, and through the Congressional Review Act, it possesses an explicit mechanism to review and overturn controversial administrative rules. Furthermore, Congress established independent inspectors general within agencies to root out waste and abuse and built the Government Accountability Office as its permanent investigative arm.
In short, Congress has no shortage of ways to monitor how agencies are carrying out legislative mandates. When the court steps in under the guise of “protecting” Congress from its own agencies, it isn't rescuing the legislature – it is disrupting an intricate, active system of congressional oversight. Now sitting above this complex system imagined by the framers is the court, to paraphrase Goldilocks, saying at times “too much” and others “too little.”
Saving its largest attack on congressional powers for last, this term the court issued Trump v. Slaughter, in which the Roberts court dictated how Congress may exercise its Article I powers by allowing the president to fire the head of the Federal Trade Commission at will, despite a statute that provides exactly the opposite. By restricting the independence of the FTC and almost all similar boards and commissions, the court is effectively telling Congress how it may regulate commerce. The president will now be empowered to direct the outcome of every rule, regulation, enforcement action, and policy with no requirement of independence.
In doing so, the court overrules actions taken by tens of Congresses – controlled by both parties – which created, funded, and reviewed the charters of such agencies. This leaves Congress without access to the expert advice of independent agencies in science, technology, financial markets, and scores of policy areas that need fulsome fact finding, transparency, and honesty to preserve the accountability of such agencies to Congress, and ultimately the American people.
Taken together, these efforts are a transfer of power from the first branch of government to the third within our constitutional system. While the framers conceived of three, co-equal branches, what the court has done is to declare that all branches are equal, but some branches are more co-equal than others.
As James Madison wrote in Federalist No. 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
While the Roberts court has not accumulated all power unto itself, it has utilized a suite of tools that bolster judicial authority at the expense of Congress.
The most important constitutional transformations are not always the most visible. Sometimes they occur quietly through changes in interpretive method – in the rules governing who may explain the law, who may adapt it, and who ultimately decides what democratic enactments mean in practice. The Supreme Court has not merely become more conservative; it has become more institutionally assertive. And that may prove to be its most legacy-defining trait.
What can Congress do?
None of this means Congress is powerless to resist and roll back this judicial overreach. American constitutional history contains many examples of Congress responding directly to Supreme Court decisions that misconstrued federal statutes.
Congress enacted the Pregnancy Discrimination Act of 1978 after the court ruled that pregnancy discrimination was not a form of sex discrimination under federal law. The Civil Rights Restoration Act of 1987 and the Civil Rights Act of 1991 overrode multiple Supreme Court decisions, like Wards Cove Packing v. Atonio and Price Waterhouse v. Hopkins, that Congress believed had improperly narrowed civil rights protections in ways inconsistent with congressional intent. These episodes reflect an important constitutional principle: Congress and the courts have historically operated not as isolated authorities, but as participants in an ongoing institutional conversation about the meaning of federal law.
The current court’s jurisprudence risks ending that conversation with its embrace of the major questions doctrine and the end of agency deference, and the gutting of independent agencies. Together, these developments make it harder for Congress to rely on broad delegations, harder for agencies to adapt statutes to modern conditions, and harder for legislators to communicate interpretive guidance to courts. The result is a gradual, systemic transfer of power away from elected branches and toward an unaccountable judiciary that by design has fewer obligations in the constitutional structure and can often move faster than Congress.
The court’s rejection of Congress’ legislative function is not just dangerous from a constitutional perspective – it’s detached from the modern reality of governing. Modern governance requires technical expertise and regulatory flexibility that large legislative bodies are poorly equipped to provide in real time. If courts insist on ever-greater statutory precision while simultaneously stripping away both agency authority and contexts in which Congress acts, the practical consequence will be governmental paralysis punctuated by judicial intervention. This may have been a workable ideal when the United States was an agrarian economy with four government departments and each senator represented half as many people as a modern member of the House. But that’s not the world we live in today.
Some may sincerely believe that the court is restoring the constitutional separation of powers; others may cheer these decisions as a way of achieving that smaller government. Regardless of motive, the institutional effect is clear.
But that trajectory is not inevitable.
Efforts to seriously reform the court are extremely popular. Three-quarters of Americans support term limits for justices; Democrats, Independents, and Republicans all give the idea at least two-thirds support.
In Congress, Democrats’ main legislative vehicle for reforming the court has been the Supreme Court Ethics, Recusal, and Transparency Act, of which Sen. Coons is a co-sponsor. The legislation would require Supreme Court justices to be bound by an enforceable code of conduct, just as every other federal judge and every member of Congress is. Although this bill would not fully address the many issues raised above, a wide-ranging judicial reform bill by future leaders of the Senate and House Judiciary Committees may be the best way to accomplish some of these goals. Indeed, it is hard to build popular support for a concept as complicated as Chevron deference, or to scale back the major questions doctrine, so including some limits on judicial overreach with a more popular proposal like an enforceable code of ethics has a potential path to success. And if past is prologue, the court’s approval may continue to fall (it currently sits around 10 points under water), and Republicans may yet see the wisdom in joining Democrats in a reform bill containing proposals that voters in their own party support by double digits.
However, Congress can and should go further, exploring ways to protect its ability to legislate – let alone govern. And that might mean advancing legislative responses to some of the court’s newest doctrines by passing legislation with greater particularity and using the annual budget authority to provide specific guidance to agencies as issues – and challenges – evolve.
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While the Supreme Court has increasingly centralized power at Congress’ and everyday Americans’ expense, this trajectory is not inevitable. As our nation marks its 250th anniversary, Congress must find the political will to restore the constitutional balance of power. The framers never intended the legislative branch to bend to the will of the president or the court. By executing rigorous oversight and aggressively asserting its authority over war powers, spending, and civil rights, at a minimum, Congress can – and must – reclaim its rightful constitutional role.
