#524 Musings Beyond the Bunker (Friday December 2)
Good morning,
This past election was different than most. Typically, an election is a referendum on the current administration. This one was also about the past administration. But, more importantly, with the four state measures on abortion rights, each of which went toward greater rights, this election felt like a referendum on the Supreme Court.
CONSISTENCY SEEMINGLY IS NOT A CONCERN
The noted judicial commentator and frequent counsel before the Supreme Court, Neal Katyal made a comment at the Aspen Ideas Featival about today’s Supreme Court that I think is enlightening, He noted, “Just like Lin-Manuel Miranda wrote in Hamilton, they are writing like they’re running out of time.” Sadly, I think time is on their side, with lifetime appointments, with several having been appointed at relatively young ages. What they are doing will be with us for a long time. And they are not at all concerned with today’s society, the opinion of the people, stare decisis, or the impact of their decisions.
They also are not troubled by inconsistency. As we begin a new term, here are a few thoughts about the state of the court the inconsistencies of their opinions, and some likely ramifications from the Supreme Court’s recent rulings last term:
The relative inability of Congress to pass legislation, coupled with the recent spate of cases point out the irony that the Supreme Court ultimately may prove to be the branch of government most able to make law. Its constitutional interpretation seems fluid, based upon the furtherance of a conservative agenda. Issues about which a consensus doesn’t exist (and worse, when there is a consensus in opposition to the Court’s action) are fair game for this Court. This sort of lawmaking is not burdened by the deliberation of a political body.
The Court chooses their cases, exercises their supermajority and legislates. Decades of law have been tossed aside by the most activist Court in our lifetimes—set to rectify what they perceive as wrong. The Court’s legitimacy is under fire, in part based upon the disproportionate number confirmed during Mr. Trump’s ter. Let’s remember that three of them were appointed by a president who didn’t win the popular vote. They are minority appointees; their opinions represent decisions not supported by a majority of Americans; their reasoning overwhelmingly has been analyzed by law scholars as expansive, sloppy, indifferent to prior law, and employing a reading of the Constitution with no apparent concern with the practical effects of their decisions. They are unconcerned with the notion that decisions should be decided on the narrow facts of the case before them, without having to seek an expansive shift in the law.
The majority maintains they are not judicial activists. Yet they could have decided the Dobbs case based on Mississippi’s original assertion of the legality of their restriction within the context of Roe. Indeed, this is the thrust of Chief Justice Roberts’s concurrence. But the court went beyond what Mississippi asked for. So much for non-judicial activism.
The court continues to believe the Second Amendment, notwithstanding its express limiting language, should be (a) applied to the ownership and carry of weapons that could not have been contemplated at the musket gun time of the founders, (b) broadly encompasses all types of firearms, and (c) does not allow reasonable limitations such as those adopted by the state of New York. By striking down New York’s limitation of carrying weapons in public, the Court is preparing us for the states being unable to establish reasonable regulations in this and other areas the Court deems constitutional.
Justice Alito seems wedded to examining our history in determining what rights are granted by inference in the Constitution and how broadly those rights should be interpreted. Lest we forget, the Heller decision recognizing individuals’ right to bear arms came after two hundred years of not finding an individual right to bear arms. But, in any event, even Heller had limits.
The Court maintains that the 14th amendment and the 9th amendment don’t extend to unenumerated rights, like a woman’s control over her own body. The cases that will come from this abandonment of stare decisis and lack of appreciation of the real world implications of their broad activist ruling will keep lawyers in business for years.
The Court’s ruling that state funds can go to religious schools and that prayer is permitted by a coach on a football field (notwithstanding the discomfort of those who may not have the same religious beliefs) indicates the Court’s willingness to ignore the establishment clause. I wonder how the Court would have reacted to a coach praying in Hebrew, or a Muslim bringing out his prayer rug, facing Mecca and praying.
The Court ignores the facts of the case in the football coach ruling. While it is perfectly reasonable for someone to pray in private and not do so in a coercive manner, they ignored that the coach did this on a football field after a game, with players all around him. The majority seems to think it relevant that the players participating were from the other team (which is totally irrelevant). The majority’s opinion ignored the facts to such an extent that Justice Kagan, in her dissent, actually included a photograph of the coach on the field surrounded by a crowd in prayer, just to show that the majority didn’t have the facts right (or didn’t care).
The Court’s decision regarding the EPA regulating greenhouse gases maintained that if the Congressional act didn’t expressly provide for something, regulators could not reasonably infer the intent of the law and regulate accordingly. If they really are textualists, the environmental protection agency was established to protect the environment, not to stand idly by. This ruling I fear is only the beginning, as it casts in doubt the ability of any federal agency to ever adopt regulations that seek to give effect to (and make reasonable judgments regarding) Congressional actions.
THE NEXT BIG CASE
The Court has accepted the case of Moore v. Harper, a challenge to the North Carolina Supreme Court overturning of a gerrymandered House redistricting. The Republicans in North Carolina maintain the state courts do not have the power to review anything related to elections, even if unconstitutional, because it isn’t expressly provided in the Constitution. They do this by relying on a previously unknown and unadjudicated doctrine of the “independent state legislature.”
The plaintiffs maintain that legislatures are provided the exclusive jurisdiction over their elections, elevated to a level of absolutism, not subject to judicial review. The Constitution provides, “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.” Somehow these people reach the conclusion that, by giving the right to the state legislatures, without expressly stating any Constitutional limitation and without expressly providing for judicial review, the Founders didn’t intend for there to be any constitutional/judicial protection to overlay the states’ actions.
To be clear, stripping state courts of judicial review of legislative overreach on the basis of unconstitutionality is a dangerous and slippery slope, directly contrary to all prior judicial authority. In taking up the case, the Supreme Court is signaling that this crazy doctrine, not to be found anywhere in the historical record, seems palatable to some segment of the Court. People should realize that this means that state legislatures (political bodies) would then be free to adopt any slate of electors they choose and decide election results for any reason (or for no reason), regardless of the facts, constitutionality or equal protection, without any oversight.
I actually can’t imagine the intellectual argument that the “independent state legislatures doctrine” should apply in this instance and yet would not extend to possibly unwinding judicial review generally. Just as the Constitution does not provide for judicial review of state legislative acts, judicial review by the Supreme Court also is not expressly provided for in the Constitution. Today, the Supreme Court is all that stands between Congress and the Constitution. There is no “independent federal legislature doctrine” that says the political branches can’t be second-guessed by the Supreme Court. It derives from Supreme Court case, Marbury v. Madison. If judicial review on the state level isn’t legitimate because it is not expressly provided for in the Constitution, it would seem a relatively small leap to find that there is nothing “constitutional” about the Supreme Court adjudicating constitutionality on the federal level.
Have a great day,
Glenn
From the archives: