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.
