An analysis published by The Atlantic argues that the U.S. Supreme Court has quietly made sweeping changes to the law while portraying its decisions as routine applications of precedent, making it more difficult for the public to recognize the extent of those changes and hold the Court accountable.
Staff writer Duncan Hosie writes that the Court has “expanded President Trump’s powers to fire independent regulators, rescind deportation protections and turn away asylum seekers; weakened state authority to enact gun control; narrowed the ability of religious minorities to vindicate their free-exercise rights; eroded the due-process rights of green-card holders; and handed big wins to multinational oil and tech companies.”
According to Hosie, these decisions have broad consequences for civil rights, immigration and government accountability. He argues that the Court often presents major legal changes as though they are routine applications of existing precedent rather than departures from it.
Hosie says this pattern of making significant legal changes while claiming to follow existing law has become “a hallmark of the Roberts Court.” He argues that the Court is reshaping the law without clearly acknowledging how much has changed, making it more difficult for the public to understand the impact of its rulings.
According to Hosie, legal precedent exists to keep courts fair and consistent. He explains that “precedent—and the legal doctrine of following it,” known as stare decisis, helps “constrain a given judge’s discretion,” creating “predictability, fairness and stability in the legal system.”
Hosie also cites philosopher Ronald Dworkin’s description of precedent as a “gravitational pull” on judicial reasoning, arguing that precedent grounds judges in longstanding legal traditions and serves as a safeguard against judicial overreach.
He argues that when courts move away from precedent, it affects how people can rely on the legal system to treat similar cases alike and weakens confidence that judicial decisions are based on established law rather than changing judicial preferences.
One example Hosie points to is Trump v. Slaughter. He writes that the decision “officially overturned Humphrey’s Executor,” a case that had shaped the structure of the federal government for decades.
The precedent established in Humphrey’s Executor v. United States held that the president cannot remove commissioners of independent federal agencies without cause. The decision provided many federal regulatory agencies with independence from direct political control.
Hosie writes that Congress relied on the protections recognized in Humphrey’s Executor when creating much of the modern administrative state. According to Hosie, the ruling means independent federal agencies “will now be upended in ways their creators never anticipated,” giving presidents more control over agencies that were originally designed to operate independently.
Hosie notes that, unlike several other recent cases, the Court openly acknowledged that it was overruling precedent in Trump v. Slaughter. He contrasts that decision with others in which, he argues, the Court substantially changed the law without expressly stating that it was abandoning earlier precedent.
Hosie also discusses Cisco Systems, Inc. v. Doe, a lawsuit brought by members of the Falun Gong spiritual movement who accused Cisco of helping the Chinese government monitor and persecute them. He argues that the Court used the case to “all but eviscerate the ATS [Alien Tort Statute],” making it “far more difficult for foreigners to bring human-rights lawsuits in U.S. courts.”
According to Hosie, the Court reached that result by relying heavily on Justice Antonin Scalia’s concurring opinion in Sosa v. Alvarez-Machain, even though the majority in Sosa had previously rejected Scalia’s reasoning. Hosie argues that the Court effectively adopted Scalia’s position without acknowledging that it was departing from the controlling precedent established by the earlier majority opinion.
According to Hosie, that change could make it more difficult for victims of alleged human rights abuses to seek justice in American courts.
Quoting Justice Sonia Sotomayor’s dissent, Hosie writes that the majority overruled earlier precedent “without even acknowledging that it is doing so.” He argues that changing the law without openly saying so makes it more difficult for people to understand why legal protections are changing.
Hosie also points to Callais v. Louisiana, arguing that the Court used a similar approach in narrowing protections under Section 2 of the Voting Rights Act. He writes that the Court relied on reasoning from a prior dissent while characterizing its decision as merely an “updated” application of existing precedent, even though the practical effect, he argues, was to make many voting rights claims substantially more difficult to pursue.
According to Hosie, this pattern allows the Court to reshape existing law while maintaining the appearance that it is simply following prior decisions. He argues that precedents cease to function as constraints on judicial power when they are interpreted in ways that fundamentally change their original meaning.
Hosie concludes by arguing that courts build public trust by applying the law consistently and honestly. He writes that when judges “pretend to follow precedent while covertly replacing it,” they weaken that trust.
According to Hosie, public confidence in the justice system depends in part on courts being transparent about how they reach their decisions, even when those decisions overturn established precedent or produce controversial results.
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