The Court That Remade America
The Supreme Court's conservative supermajority has moved faster and more broadly than even its architects expected. What the past three years tell us about where it is going next.
The term that ended in June 2022 was the most consequential in the modern history of the Supreme Court. Dobbs v. Jackson Women's Health Organization overruled Roe v. Wade and Planned Parenthood v. Casey, returning abortion regulation to the states. New York State Rifle & Pistol Association v. Bruen established a new Second Amendment test that has since invalidated handgun restrictions that had been in place for decades. West Virginia v. EPA constrained the administrative state's authority to regulate in major policy areas without specific congressional authorization. Kennedy v. Bremerton School District expanded government employee religious expression in ways that partially eroded the Establishment Clause doctrine developed over the previous generation.
That was a single term. It had been preceded by NFIB v. OSHA (constraining the federal vaccine mandate), Mahanoy Area School District v. B.L. (student speech), and a series of religion clause cases — Espinoza v. Montana Department of Revenue, Fulton v. City of Philadelphia — that moved substantially toward government support for religious institutions. It has been followed by Students for Fair Admissions (ending affirmative action in college admissions), 303 Creative v. Elenis (exempting businesses from anti-discrimination laws on expressive activity grounds), and Loper Bright Enterprises v. Raimondo (overruling the forty-year-old Chevron doctrine of deference to agency statutory interpretation).
Taken together, these decisions represent the most rapid and comprehensive realignment of constitutional doctrine since the New Deal era. Understanding what the Court has done — and what it is likely to do next — requires looking past the ideological valence of specific decisions to the underlying jurisprudential project.
The methodological revolution
The signature methodology of the Court's conservative supermajority is originalism: the interpretive approach that holds constitutional provisions mean what they meant at the time of their adoption, as understood by those who adopted them. Originalism has several variants, but the Bruen decision's originalism — requiring that modern regulations must have historical analogues from the founding era to survive Second Amendment challenge — represents the most demanding version.
Bruen's methodology has generated a wave of lower court decisions striking down longstanding gun regulations — prohibitions on felons possessing firearms, domestic violence offender restrictions, regulations of untraceable "ghost guns" — on the ground that no historical analogue existed in 1791. Federal judges have found themselves, as one district court opinion put it, in the position of historians without historical training, required to evaluate eighteenth-century regulatory practices to assess the constitutionality of twenty-first century laws.
The practical problems with this methodology are real: the historical record is incomplete, contested, and subject to motivated reading by the lawyers and scholars who produce the history the courts rely on. The founding era included significant variation in gun regulation by state and locality; the historical analogues that litigants cite are often cherry-picked. The Court's Bruen majority has not, in subsequent decisions, provided clear guidance on how lower courts should handle historical record problems.
Metaculus forecasts a 58 percent probability that the Supreme Court will hear and decide at least one case significantly limiting the Bruen historical analogue test before 2030 — suggesting that the Court itself will need to clarify a methodology it has found more unruly in application than it anticipated.
The administrative law project
Loper Bright's overruling of the Chevron doctrine is the most consequential administrative law decision in forty years. Chevron held that courts should defer to an agency's reasonable interpretation of an ambiguous statute; Loper Bright holds that courts must interpret statutes themselves, without deference to agency expertise.
The immediate effect of Loper Bright is to transfer interpretive authority over administrative law from agencies, which have subject-matter expertise, to courts, which have legal expertise. Whether this produces better statutory interpretations on average is a genuinely contested empirical question; reasonable administrative lawyers disagree. What is not contested is that it will produce more litigation, longer judicial timelines, and more uncertainty for regulatory programs that have relied on Chevron deference for their legal authority.
The deeper effect — which will take years to become visible — is to make administrative policy-making substantially more difficult. Agencies that interpreted ambiguous statutory provisions broadly to address regulatory problems will now face legal challenges under a de novo judicial review standard that is more demanding. The practical result will be either more specific congressional delegation (Congress writing more detailed statutory instructions) or less regulatory ambition (agencies declining to act at the limits of their statutory authority).
Kalshi was trading a contract on whether the EPA will successfully defend a major climate regulation under the West Virginia major questions doctrine and the new Loper Bright standard before 2028 at 37 percent. The administrative law landscape for the next decade is being set by cases being litigated now.
What comes next
The conservative legal movement's agenda includes several items that have not yet been adjudicated by the current Court.
Birthright citizenship — the Fourteenth Amendment's guarantee of citizenship to all persons born in the United States — has been the subject of presidential executive orders claiming that the Fourteenth Amendment does not extend to children born of parents who are present illegally. Federal district courts have universally rejected this argument; the question of whether the Supreme Court will reach the same conclusion under the current majority is genuinely uncertain.
Administrative adjudication — the use of executive agency administrative law judges to adjudicate enforcement cases — has been challenged on Article II separation of powers grounds; SEC v. Jarkesy (2024) held that the Seventh Amendment right to jury trial applies in fraud enforcement proceedings before administrative law judges. The extension of this ruling to other administrative enforcement contexts is being actively litigated.
Independent agency structure — the legal authority of agencies like the FTC, FCC, and CFPB to exercise significant regulatory power with limited presidential removal authority — has been a target of conservative legal challenges since at least Seila Law LLC v. CFPB (2020). Whether the Court will ultimately hold that all significant executive power must reside in the president's direct chain of command is a question that several pending cases are moving toward.
Polymarket was trading a contract on whether the Supreme Court will issue a ruling directly limiting the independence of a major regulatory agency before 2028 at 48 percent. Roughly coin-flip odds for a decision that could restructure the administrative state is a signal worth taking seriously.
Nathaniel Brooks is a contributing writer at The Auguro covering constitutional law, the Supreme Court, and the legal dimensions of technology and democracy.