by Mark M. BelloYou may have seen the recent Atlantic article chronicling an extraordinary shift on the U.S. Supreme Court—not just in jurisprudence, but in tone, trust, and tradition. Progressive Justices Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor aren’t just dissenting from the Court’s conservative supermajority—they’re issuing warnings. And they are not using the usual “we respectfully disagree” kind of language. They’re sounding an alarm; these are lights flashing, sirens blaring, buildings are shaking 5-alarm fire type warnings.
What exactly are they saying? Should we take them seriously—or is this just minority sour grapes after losing control of the Court?
Let’s take a look.
Until recently, Supreme Court dissents—while pointed—tended to respect certain institutional norms. They quarreled over interpretations of law, not the legitimacy of the Court itself.
No more.
Justice Kagan recently accused the majority of “writing its own rules” and reshaping doctrines out of thin air. Justices Jackson and Sotomayor have suggested that the Court is no longer bound by precedent or constitutional structure. Their dissents don’t sound like healthy legal debate—they sound like last-ditch “thar she blows!” warnings from the constitutional emergency room.
“This obliterates the boundaries of executive power Congress has carefully drawn.” — Justice Jackson, dissenting in AFGE v. Trump
“No right is secure in the new legal regime the Court creates.” — Justice Sotomayor, in the birthright citizenship case
This is not your grandparents’ judicial dissent. It’s constitutional triage.
That’s the key question. Are the liberal justices just ideologically upset? Or is there a deeper problem?
In my view, it’s the latter. The conservative majority is not merely interpreting laws in a right-leaning way—it’s often discarding legal traditions altogether.
We’ve seen a dramatic uptick in shadow docket rulings—emergency decisions without full briefing or oral argument. These rulings have allowed sweeping constitutional changes (like letting Donald Trump bypass Congress to slash a federal agency) with no public explanation.
We’ve seen the destruction of foundational doctrines, like Chevron deference, which for decades allowed federal agencies to interpret ambiguous statutes. That doctrine, hated by conservatives for giving “too much” power to the executive branch, has now been dismantled—ironically giving far more power to unelected judges. Be careful what you wish for, conservatives.
We’ve seen precedent treated as optional. Stare decisis, once a bedrock of judicial legitimacy, has become a mere suggestion. And when precedent is inconvenient, it’s out the window. Again, while benefitting conservatives withthis majority in place, what happens in the future when the opposition has the power?
Yes, ideological swings are part of Court history. The Warren Court reshaped civil rights. The Rehnquist Court reined them in. But what we’re seeing now is not just ideological—it’s methodological.
The liberal justices aren’t simply saying “we lost.” They’re arguing “you changed the rules.”
Even Chief Justice John Roberts, once the voice of institutional restraint, has drifting toward the new majority line. If Roberts has lost control—with liberal Justices yelling into the void—who’s steering the Court?
Apparently, the cab drivers are Justices Clarence Thomas and Sam Alito, with Neil Gorsuch and Amy Coney Barrett joining when ideologically aligned. This bloc has shown little regard for precedent, regulatory restraint, or even long-established judicial processes.
Critics on the right will say this is all just sour grapes. Liberals had their day with Roe v. Wade, Obergefell, and the ACA, and now they can’t handle the pendulum swinging back. Fair point.
But read the dissents carefully.
These justices aren’t bemoaning policy outcomes. They’re raising structural alarms: about judicial integrity and independence, democratic accountability, and constitutional process.
“If you like all the conclusions you reach, you’re probably doing something wrong.”
— Justice Antonin Scalia
That standard doesn’t seem to apply anymore. Today’s majority appears quite comfortable reaching only outcomes it likes and retrofitting doctrine (and decisions) around those outcomes.
That’s not constitutional interpretation. That’s power dressed up as (and ignoring) law.
We can’t afford to dismiss these warnings as partisan whining.
They’re not about losing. They’re about legitimacy.
The Court has no army. It has no purse. It survives on the public’s belief that it operates within law—not over and around it.
When that faith erodes, so does the foundation of American constitutional democracy.
We the people must pay attention. Because once the Court stops checking itself and other government abuses of power, it’s up to us to apply the brakes—through voting, public discourse, and unwavering civic pressure.
This isn’t about right vs. left.
It’s about law vs. power.
Will the rule of law survive the rule of power?
Mark M. Bello is an attorney and author of 9 Zachary Blake Legal Thrillers and other legal themed novels and children’s books. For more information, please visit https://www.markmbello.com
