You may or may not care about affirmative action, LGBTQ rights, or student debt.
But this week’s Supreme Court rulings should disturb you anyway.
Until this week, the final week of its annual term, the Supreme Court seemed to be backing away from the rogue behavior of last year, in which it had repeatedly ignored precedent, invented fanciful readings of history, and generally found excuses to go wherever its right-wing ideology might lead.
Recall that last year, the Court didn’t merely eliminate abortion rights, its logic in Dobbs rejected the doctrine of substantive due process, potentially setting up the elimination of all rights that rely on that doctrine: same-sex marriage, access to birth control, the right of consenting adults to choose their own expressions of sexuality, and many others. In Bruen, it not only threw out a century-old New York State gun control law, it cast doubt on all gun-control laws that are not “consistent with the Nation’s historical tradition of firearm regulation” as Justice Thomas interprets that history. The direct impact of Carson might have been small — a religious school in Maine will get a small amount of state money — but the decision blew a huge hole in the wall between Church and State. Who can say what rude beast will slouch through that hole in the future?
Until this week, the Court seemed to be charting a more moderate course this year. Perhaps, some speculated, it had been stung by the backlash to last year’s rulings. (Dobbs in particular became a major issue in the 2022 midterms, and probably prevented Republicans from regaining control of the Senate. Supreme Court justices are supposed to be above caring about such partisan outcomes, but Chief Justice Roberts clearly does care.) Or perhaps the conservative majority was sensitive to the damage the Court’s reputation has suffered from the exposure of the blatant (and unpunished) corruption of Justices Thomas and Alito.
Whatever the reason, the Court had backed away endorsing the extreme independent state legislature theory, which would allow state legislatures to ignore the constitutions that formed them and reject the outcome of elections. It’s ridiculous that the case made it this far and that three justices (Thomas, Alito, and Gorsuch) endorsed such a frontal attack on democracy, but at least that effort was defeated. In addition, the Court rejected a red-state challenge to Biden’s immigration policy, supported Native American rights, and refused to destroy what remains of the Voting Rights Act.
Maybe, it seemed, this Court wasn’t as bad as we had thought.
I will give myself credit for remaining suspicious. Last week I wrote:
My guess is that Roberts has manipulated the calendar so that the Court’s most controversial decisions will come last. The cases decided recently have been divided between liberal and conservative wins, building up Roberts’ “centrist” credibility.
And so it was. In the term’s final week, the Court burned that centrist credibility. It ended affirmative action in college admissions (and blew away the justification for any form of affirmative action), shot down the Biden administration’s student-loan forgiveness program, and inserted an enormous loophole into all anti-discrimination laws.
Unlike last year’s Dobbs decision, though, none of these cases strikes a live wire of American politics. The direct victims of these decisions — Black students hoping to get into a good college (or go to college at all), young people drowning under student debt, and LGBTQ people wanting not to be second-class citizens — are probably not going to swing the 2024 elections the way that previously Republican suburban women swung the 2022 elections by staying home or supporting Democrats. Blacks, the young, and LGBTQ voters are already Democratic constituencies that partisan Republicans (like John Roberts) probably don’t mind pissing off.
So while it’s tempting to dive into the details of each case, point out the dubious logic the majority employs, and quote extensively from the ringing dissents by Justices Sotomayor, Jackson, and Kagan, I think that approach misses the larger story and would probably make many readers’ eyes glaze over. But looking at these three rulings as a whole, and setting them in the context of last year’s decisions, reveals a larger pattern that should disturb everyone: This Court is increasingly untethering itself from all traditional restraints on judicial power.
What limits the Supreme Court? A quick reading of the Constitution might leave you with a modest view of the powers of the Court. The Constitution establishes Congress in Article I, the presidency in Article II, and the judiciary in Article III, giving a hint that the Founders saw it as the least important and least powerful of the three branches of government. While the powers of Congress and the President are spelled out at length, Article III is much shorter, and about half of that space is taken up guaranteeing trial by jury and defining treason.
However, the Constitution left one important power unassigned: Congress writes the laws and the President enforces them, but who says what the law is? When statutes seem to contradict each other or the Constitution, who sorts things out?
In 1803, the Supreme Court claimed that power for itself, as Alexander Hamilton assumed it would in Federalist 78.
The unique property of judicial review is that this power is virtually unchecked by the other branches or by the People. If Congress can muster a supermajority, it can remove justices by impeachment, or it can start the constitutional amendment process. But otherwise, there’s not much anyone can do about the Court’s ruling that some act is unconstitutional. The Court is literally supreme; there is no further appeal.
And in some situations that’s obviously a good thing. Like me, you may think the Court got Bush v Gore wrong. But even I have to admit that somebody has to have the last word on a disputed election. Otherwise we’ll end up fighting in the streets.
In the absence of the usual checks and balances, the Court is restrained by a number of its own traditions:
- precedent. The doctrine of stare decisis (literally, “let the decision stand”) requires that in the absence of a clear error, courts are obliged to view each new case through the lens of past decisions. The interpretation of the laws should not change from case to case or judge to judge.
- standing. The Court cannot insert itself into every issue on which its majority has an opinion. The Court has to wait until someone brings it a case, and the party bringing the case can’t just be a convenient busybody; the case must be brought by someone who has a direct interest in its outcome.
- rules of interpretation. The Court’s rulings cannot be based purely on its own opinions and intuitions. Rulings have to be tied to specific laws, and the way legal terms and phrases are interpreted is also subject to stare decisis.
- respect for lower courts. In the absence of clear error, the Court should respect the findings of lower courts. In particular, when lower courts have held extensive hearings on the facts of a case, the Court should not ignore those findings and collect its own facts.
What we’ve seen these last two years, and saw particularly this last week, is an increasing disregard of these constraints. Even Americans who don’t care about this week’s cases (or agree with their outcomes) should find that disturbing. Without these constraints, the Supreme Court comes to resemble the Supreme Leader of Iran — an unelected and unaccountable authority with lifetime tenure that has the power to weigh in wherever it chooses.
Standing. Two of this week’s major cases had standing issues that made them almost laughable. The Court had no business hearing either one.
In the student-loan-forgiveness case, the HEROES Act of 2003 gives the Secretary of Education the power to “waive or modify” the terms of student loans for borrowers affected by a national emergency. The Biden administration proposed to use this law and the declared emergency of the Covid pandemic to forgive up to $20,000 of loans for borrowers making less that $150K a year.
If you don’t owe student loans yourself, or you make more than $150K, you may not care about this policy. You may even think it’s a bad idea; many people do. But how did this issue make it to the Supreme Court? Because the Biden administration was sued by the Republican attorneys general of six states.
But wait: Why are the states anything more than busybodies? They don’t make the loans or collect the payments. What injury do they suffer if the federal government forgives student loans? (And notably, none of the six — or any other state — sued when the Trump administration used the same law and the same emergency to suspend loan repayments in 2020. Their interest is not to redress some injury they’ve suffered, but to thwart the Biden administration.)
In his majority opinion, Chief Justice Roberts accepts a ridiculous argument that Justice Kagan completely demolishes in her dissent: One of the six states, Missouri, had created an independent public corporation, the Missouri Higher Education Loan Authority (MOHELA), to administer student loans. MOHELA contracts with the Department of Education to service loans, and its fees might decrease by $44 million next year if the loan forgiveness goes through. So MOHELA potentially suffers an injury and has standing to sue.
However, as Justice Kagan points out, Missouri is not MOHELA. Missouri created MOHELA to be financially independent, and gave MOHELA its own power to sue, which MOHELA has chosen not to do. MOHELA has not even submitted an amicus brief; it has shown no interest in this case whatsoever.
Is there a person in America who thinks Missouri is here because it is worried about MOHELA’s loss of loan-servicing fees? I would like to meet him. Missouri is here because it thinks the Secretary’s loan cancellation plan makes for terrible, inequitable, wasteful policy. And so too for Arkansas, Iowa, Kansas, Nebraska, and South Carolina. And maybe all of them are right. But that question is not what this Court sits to decide.
In short, the State of Missouri and its conservative attorney general are convenient busybodies that the Court used to insert itself into a public-policy debate that was none of its business. (The justification of its decision was also specious, but we’ll get to that later.)
The challenge to Colorado’s anti-discrimination law was even flimsier: A graphic designer in Colorado (Lorie Smith) has a one-woman corporation (303 Creative) that creates websites for products and events. She wants to start offering wedding-announcement websites, but claims that her “Christian” beliefs will not allow her to work with same-sex couples. This religion-based bigotry, she fears, will put her in violation of Colorado’s anti-discrimination law, so she is seeking an injunction to prevent Colorado from enforcing the law against her.
Picture the situation: Smith currently has no wedding-website-design business, and we don’t know that she ever will. That prospective business has no clients yet, and no same-sex couples are seeking to become its clients. So she has not rejected any same-sex clients, and the State of Colorado has had no occasion to cite her with any violation.
So what’s this case about?
For comparison, it’s as if the Scopes Monkey Trial had taken place after John Scopes merely thought about teaching evolution, or Plessy v Ferguson had gone to the Supreme Court without Homer Plessy ever trying to board the whites-only train car. Maybe Jane Roe could have challenged Texas’ abortion laws as soon as she and her husband started thinking about having sex.
You might also wonder how such a small operator gets such a weak lawsuit all the way to the Supreme Court. (Could you do that if you were imagining starting a business?) It’s simple: Smith’s suit was taken up by the Alliance Defending “Freedom”, which is part of the network of right-wing legal organizations clustered around Leonard Leo, the matchmaker who introduced Justices Thomas and Alito to their billionaire sugar daddies, and spent millions of dark money on ads to block the appointment of Merrick Garland to the Court while pushing for the approval of Justices Gorsuch, Kavanaugh, and Barrett.
From ADF’s Christian-nationalist point of view, the vaporous nature of the case is in fact an advantage. If Smith had actually violated the anti-discrimination law, some same-sex couple would be her victims. They might appear on TV shows and garner sympathy from the general public, which overwhelmingly disapproves of bigotry and discrimination. But instead, ADF can cast Smith as a victim of the state, albeit in a purely theoretical sense.
And since the case has no actual facts, the Court’s majority can frame its hypothetical facts however it wants.
In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.
Kagan’s dissent disputes that characterization, but who can say? Colorado has not taken any real-world action at all, so whatever it might be “seeking” in some future timeline is open to any conjecture.
In this reality, though, Smith has suffered no injury and has no standing to sue anybody. But none of that matters, because this Court will rule on whatever issues it wants, whether anyone has brought it a legitimate case or not.
Precedent. Other than its direct effect on the lives of millions of American women, including endangering the lives of a not-inconsiderable number of them, the most striking thing about last year’s Dobbs decision was that nothing of significance in the external world had changed since the last time the Court had reviewed abortion rights. But the Court had new justices, so there was a new outcome.
That’s exactly what stare decisis is supposed to prevent.
But OK, you could imagine that was a one-off: Maybe Roe was just an unusually poorly decided case that needed to be reversed. It happens. As Justice Kavanaugh reminded us during the oral arguments in Dobbs, some of the Court’s proudest decisions are reversals of mistakes, like when Brown reversed Plessy’s separate-but-equal ruling.
But the longer we watch this Court, the more obvious it becomes that precedent has lost its power. When precedents can be used to support a desired conclusion, (like Justice Harlan’s reference to a “colorblind constitution”) they are quoted with great respect, though not always in proper context. (Harlan was objecting to race-based rules that maintain the power of the dominant caste, not ones that undermine that power.) But inconvenient precedents are just mistakes to be rectified.
In the affirmative action case, for example, little of legal significance has changed since the Grutter decision of 2003.
In a majority opinion joined by four other justices, Justice Sandra Day O’Connor held that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
But the composition of the Court has changed since 2003, so O’Connor’s conclusion no longer holds. The benefits of a diverse student body are the same as they were 20 years ago — if anything, they are becoming more significant as the US becomes less white and the world economy more globalized — but today those benefits are, in Chief Justice Roberts’ words “not sufficiently coherent for purposes of strict scrutiny”. Roberts instead constructs a Catch-22: If the needed amount of diversity can be quantified, then it is a quota, which is illegal. But if it can’t, then the concept is too incoherent to constitute a compelling interest.
Roberts won’t say it, but Justice Thomas will:
The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled.
Respect for lower courts. The affirmative action decision is a daunting read: 237 pages long. One reason it has to be so long is that Roberts’ majority opinion ignores the inconvenient factual findings of the district court, which were upheld by the appellate court. Instead, he pulls facts from the plaintiff’s (SFFA’s) filings and other sympathetic sources, which the dissents then need to refute by compiling their own facts. Sotomayor’s dissent cites examples like this one:
The Court ignores these careful [district court] findings and concludes that Harvard engages in racial balancing because its “focus on numbers is obvious.” Because SFFA failed to offer an expert and to prove its claim below, the majority is forced to reconstruct the record and conduct its own factual analysis. It thus relies on a single chart from SFFA’s brief that truncates relevant data in the record. That chart cannot displace the careful factfinding by the District Court, which the First Circuit upheld on appeal under clear error review.
Roberts never explains why the district court’s findings are unreliable. He just doesn’t like them, so he doesn’t mention them.
Rules of interpretation. The rhetoric of conservative legal scholars is all about strictly constructing the exact text of the laws. Conservative Supreme Court justices often refer to their interpretative technique as “textualism” or “originalism” — the notion that phrases in the laws and the Constitution should be interpreted as they would have been commonly understood at the time the words were written.
You might expect that this responsibility to read the text closely would limit the power of judges to insert their own views into the law, but as practiced by the current justices, it does the exact opposite. Understanding how words were commonly understood at some point in the past is a job for historians, and the justices are not historians. Nor do they typically respect the consensus of the people who are historians.
Instead, we are treated to excursions into history that — voila! — always reach the desired result. If you’ve ever delved deeply into history yourself, you should understand how unlikely this is. History, researched honestly, frequently jars your preconceived notions. But the conservative justices are never jarred off their favored course.
Two of last year’s cases model how this works: Justice Alito justified his Dobbs decision with examples going back to the Middle Ages (because of course we should be guided by medieval views of women’s rights). But when Justice Thomas (writing for Alito as well as himself) overturned a New York gun-control law in Bruen, gun-control history from the 1600s was too early to matter and Wild West gun control too late. Inconvenient laws and rulings from the era Thomas focused on were “outliers” or “clearly erroneous”. And so Thomas also found historical backing for his interpretations.
This week’s student-loan decision presented an example of another “doctrine” that the Court has invented out of whole cloth to increase its own power: the major questions doctrine. The major questions doctrine is violated whenever an executive agency makes a ruling that seems to the Court to be too big for the provision in the law it cites. Congress, the justices decide, couldn’t have intended to put so much power into such a small package.
In other words, major-questions is a way for the Court to second-guess both executive agencies and the text of the laws.
In the student-loan case (which, as I noted above, the Court had no business considering at all), Congress passed the HEROES Act in 2003 to give the Secretary of Education special powers over student loans during a national emergency. It was a sequel to laws passed in 1991 and 2002 that responded to specific emergencies (the Gulf War and 9-11).
Self-evidently, it is the nature of emergencies to be unforeseen, and bigger emergencies will require bigger responses. Congress surely knew this in 2003.
The Covid pandemic was an emergency affecting the entire country, and it justified trillions of dollars in relief spending. But Chief Justice Roberts applies the major-questions doctrine to Covid-related debt cancellation and finds that it is too big. Congress could not have intended to delegate that much power.
He bases this conclusion on nothing in the law itself. Congress could have put a cap on emergency responses or limited them in some other way, but it didn’t.
As Justice Kagan points out in her dissent, Congress may have been unwise to delegate so much power, and the Biden administration’s attempt to use that power could also turn out to be unwise. Voters might have come to that conclusion and disciplined the politicians responsible in future elections.
But voters won’t have to make that judgment, because the Court — based on nothing — has inserted itself into the debate and made that judgment for them.
Conclusion. In short, the text of the law matters — unless it can be explained away with historical hocus-pocus, or unless the Court’s retrospective mind-reading reveals that Congress could not have intended some particular use of the law it wrote. Precedent matters if it can be construed to support what the conservative majority wants to do, but otherwise it is a mistake to be fixed. Standing doesn’t matter at all any more; if the Court wants to weigh in on a topic, it will find a way to do so. And facts? Well, the best cases are ones that have no facts, because they provide the most open fields for judgment.
These are the principles the current Court operates under. If that doesn’t bother you, you haven’t been paying attention. Or maybe you envy the way Iran has structured its government.
The Weekly Sift 
Comments
The idea that 303 Creative would be expressing a protected opinion is ludicrous. If I hire a website to say that I hate chocolate ice cream, that is expressing an opinion, but everybody (except maybe this Supreme Court) would assume that it’s my opinion, not the website designer’s opinion. (Incidentally, nothing in Colorado’s law would stop 303 Creative from posting “We hate fags” on their own website.)
One of the most stirring pieces of legal writing I’ve found is New Mexico Supreme Court Justice Richard Bosson’s concurrence in the 2013 wedding photographer case (https://cases.justia.com/new-mexico/supreme-court/33-687.pdf?ts=1462392275, paragraphs 81), explaining the legal opinion in everyday prose. The case, Elane Photography vs. Willock, was rejected on appeal to the US Supreme Court.
Justice Bosson connects this case to several landmark Supreme Court cases on religious liberty and racial discrimination (Barnette vs. West Virginia, Loving vs. Virginia, Heart of Atlanta Motel). He concludes: “this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life. In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.”
Our second amendment was not written to hunt ducks.
In China, Hong Kong and Venezuela their citizens would not be in body part harvesting camps if they would have had guns.
In my native Finland we have Guns but smart enough to kill each other.
Yet, arms to hunt ducks was pretty much all they had to muster against fellow humans.
True but we can change the Constitution by amending it if we agree but not by Supreme Court!
According to Federalist #29, the “militia” was to be under government control. The 2nd Amendment was clearly written to take advantage of private gun ownership to create citizens militias, that could be called up by the government in place of a standing army. The proof of this is that the Constitution only allows appropriations for an army for a maximum of two years, because the need for it was expected to be temporary. There is no time limit on funding for a navy, in contrast, because ships are expensive and were expected to be a permanent part of government.
Anyone who thinks the 2nd Amendment allows them to own guns in case they have to overthrow the government someday should have their weapons confiscated and should be placed on a terrorist watch list.
Federalist papers were viewpoints in a debate on a contract called the constitution and the compromise that made it in is written in the constitution. We do not take an oath when naturalized to defend the federalist discussion notes only the constitution. If you are not happy with it there are written within how you com change it until then you could find yourself on a terrorist watchlist for forcefully changing rights our constitution awards both you and me.
Switzerland has arms in every home and these guns don’t kill hardly anybody unless in self defense because the people are both educated and smart.
It’s the education we should focus on not the tools for evil as truck killing people in Cannes showed us.
An article fleshing out how the Swiss gun culture differs from American gun culture: https://www.salon.com/2015/09/14/the_rights_deeply_misleading_new_gun_control_meme_america_should_be_more_like_switzerland/
I fully agree that, like Switzerland all our existing and aspiring new American Citizens should be drafted into a militia service, for at least a year, and reoccurring training, and get guns and learn how to safely use them.
No refusal allowed if you want to reside in a country you are not willing to defend.
Switzerland also because of its location is very cosmopolitan and citizens aware of different countries and cultures, and part of our militia service should be all our citizens helping 3 months in a developing country like Cameroon, Nepal or Bolivia to fully understand, how fortunate they are to reside in America, and our important role of preventing fascist rule, like in Iran, Cuba, Communist China, Russia, Venezuela and North Korea.
From Switzerland we could also adopt bank secrecy rules, and importance of a strong economy not living beyond its means.
JFK peace corps was a great initiative.
The “historical tradition of firearm regulation” part is ESPECIALLY ludicrous, because it uses an Alice-thru-the-Looking-Glass White Knight approach: the word “firearm” means whatever the Court says it means.
There is some logic in matching up “historical tradition of firearm regulation” with the history of firearm TECHNOLOGY. I.e. you can have whatever flintlock pistols you want.
Otherwise, it’s completely meaningless (and totally arbitrary). I can call a shoulder-launched anti-tank missile a “firearm”.
Worse: such a weapon is LESS of an increment (compared to an AR-15), than the AR-15 is compared to the firearms of 1789.
Firearm is what the contract called Constitution says – Constitution ALSO says how we can change it if we agree and it’s NOT by Supreme Court inventing what they would want it to say – change if we agree!
The Constitution refers to “arms”. It does not define what that word means. At the time, it was obvious. But if you showed an AR-15 to Hamilton, Franklin et al, I strongly doubt that they would consider it “arms”. Perhaps they would have called it a “portable cannon” and thus not covered by the 2nd amendment.
The symbol (the word) is not the thing. The map is not the territory.
“Would have”? Yes free speech did not imagine Facebook either! But if you enter into a divorce or any other agreement as a result of negotiations between multiple parties you envision that things could change and you agree on how to change and amendment is clear so change it because arms changed but how to change it did not change.
Um, no, that does not match history at all.
Plenty of words have evolved over time (“free speech”, “money”, “debt”, “civil rights”). Both the legislatures and the courts have (usually) changed the laws, or changed the interpretation of the laws, to try and keep up with changes. E.g. it did not require an Amendment to include electronic “speech” under the 1st amendment.
In recent cases, the SCOTUS majority has gone BACKWARDS in time to (re)define what certain words mean, and frequently with egregious cherry-picking (e.g. medieval laws about abortion).
For another example, the “right to privacy” evolved, in the courts, from the 14th amendment. And yet it does not appear in the Constitution or any amendment.
When no dispute – “gotten away with it” without amending is a more accurate description – we clearly saw abortion changed with a different majority than when it was decided based on inventing a right to privacy not written in the constitution nor amended. You proved my point. If an amendment would have been passed the Supreme Court could not have reverted back!
Electronic speech now accepted could well also if challenged be changed – not likely as today not controversial.
Constitution does not say Supreme Court today has to agree with Supreme Court yesterday but if AMENDED it is the constitution binding on supreme court as well.
Fair point, thanks for explaining.
A Constitutional Amendment is, alas, almost entirely impractical now. (Consider the fate of the still-zombified ERA.) It would be “easier” to increase the number of SCOTUS justices, if it came to that.
In some STATES, this is more practical. Here in Michigan, we’ve written and passed-by-the-voters several VERY SPECIFIC amendments regarding abortion, voting, and (in particular) gerrymandering. (Caveat/brag: I was heavily involved in several of them. 🙂 )
Good for you congrats !
Frankly that’s why states closer to the voters were left to decide ALL such issues, unless specifically specified as federal decision. If you don’t like a state or like better another state you can move. Brilliance of constitutional republic rather than temporary tyranny by majority of minority.
Brussels is ruled by Germany Spain France Italy and no common debt nor defense.
Estonia less power than Oregon
Um. You seem to be missing the social and financial obstacles to “just move to another state.”
I’ve lived in six countries and six states here, and was born dirt poor in a war torn country – millions of people every single day risk their lives to come here carrying their children – to the best country on earth, because only 8% of 8 billion live like we in the world – I visited 173 countries and territories myself) – what am I missing ???!
My own child touring America right now with her boyfriend 3 weeks with money they saved sleeping in the used car they bought with savings …
Mandatory one year working in country side of Cameroon maybe would help getting a new perspective on life ?
Not an issue for me either, but we are not everyone.
America was founded as the most individualistic nation on earth where pursuit of happiness was guaranteed not happiness itself.
Personal responsibility and responsibility for one’s children we all must assume , we cannot legislate in a society based on representation that every individual is free to do what they wish but consequences somehow is not theirs to deal with.
I am not aligned to your thinking, here. Our state of independence, to my mind, refers less to individuals and more to us as a nation, breaking from autocratic rule. We are still a community of people with a need to look after our public good. Otherwise, it’s anarchy, and I am fairly certain that was not the intention of our Fore Fathers, let alone the Constitution. In fact, personal rights seem delineated in recognition that we are a relational society in need of each other. I, for one, would look forward to an evolution to Interdependence on all levels – individual, community, society and the world.
Good response let me comment:
Our state of independence, to my mind, refers less to individuals and more to us as a nation, breaking from autocratic rule.
We are still a community of people with a need to look after our public good.
I fully agree but community members may act at their own initiative and we as individual Americans help more than EU as a union. My own humble effort was 30 children in 20 countries until adult enough to provide for themselves and now 4 children in the Phillippines.
Otherwise, it’s anarchy, and I am fairly certain that was not the intention of our Fore Fathers, let alone the Constitution.
There was no income tax in 1776 and charity was up to the individual.
In fact, personal rights seem delineated in recognition that we are a relational society in need of each other. I, for one, would look forward to an evolution to Interdependence on all levels – individual, community, society and the world.
This as you express I can agree with in principle and support for school children to level the playing field with school vouchers is one such initiative to be equally prepared to apply to college.
Mini loans in India and Africa lifted many out of poverty.
Full suffrage for women 1906 in Finland was enabled by men who had that right but willing to be fair.
Teaching a hungry to fish instead of depending on free fish meal.
Based on your definition of “arm,” I should be able to carry a machine gun into the legislature. In fact, as governor of California, Ronald Reagan enacted strict gun control laws in response to the Black Panthers carrying rifles and shotguns into the state legislature building, and following the police around with them. California had “constitutional carry” at that time.
I see no reason why not – in Ukraine today when president president presides there surely are guns present and if Russians had guns Putin would not be in Crimea
Are you afraid of weapons? Did you ever serve in military ? Have you ever been threatened by criminals ? Why is it important to impose your values on others instead of live and let live ?
We punish actions not speech of what we wear or carry and box cutters only took 911 towers down ?
I’ve never commented before. Legislative has oversight from the Executive. Judicial has never needed oversight because it typically stayed between the rails of the law. What’s happening now with unbridled actions is maddening. There has to be accountability. What are we to do? We can’t vote this away.
The constitution gave only justices life term for a reason. Reason to allow justices freedom of no political pressure but only amongst the 9 require majority. A Justice raping anybody can be punished like any other citizen but as to oversight no such right given to executive or legislative. Today it’s a conservative leaning court and conservatives probably would have wanted to in 1960s but did not as no such provision exist.
Elections have consequences, timing too.
The Senate can still remove Justices, and thus has SOME oversight… but it requires a super-majority. In theory they can also pass laws that relate (e.g. ethics), but it’s unclear if that would work.
Correct and good if one day needed for such actions but not for dislike
An election was exactly why Mitch pulled the delay stunt of Garland. So, but the consequence of an election.
I’m afraid the Constitution missed the possibility of one Party othering the other to create a false enemy.
Judicial Review was not “claimed” or invented by Marbury and the idea that it was is “new”. Marbury was simply the first time that someone was fool enough to claim that SCOTUS did not have that power. SCOTUS had previously executed that power in prior decisions. There is nothing else that the words “the judicial power” could possibly mean. Review is a thing that had been passed down from the English common law tradition and while England doesn’t “formally” have review this is only because England doesn’t have a primary document which is sovereign above all other documents; the courts still interpret law but there is no overarching law that they can point to to deny new law. If there was (and to be fair this has happened a few times) then an inability to claim something was against the constitution ends the constitution as a document and removes all power from the courts.
Additionally its worth while to consider that this is the point of view of the writers of the constitution. They told us this in the Federalist Papers. Which was not truly a “dialogue” but an explanation. After the Articles of Confederation the new constitution was the Federalists preferred one. When the Federalist papers say that the courts would determine what is and isn’t constitutional its not an “interpretation” its the authors of the text telling us exactly what Judicial Review means.
The only thing that was new about Judicial Review in Marbury is that it was given a name. And the only thing controversial about Marbury is that someone claimed they had no power. (and OK to be fair the exercise in power here was probably an abuse but that is what the document says, as Kagan would put it)
Goodness, you seem to have attracted some activity with this one.
I have one nit to pick:
Not quite. See Article III § 2 on the jurisdiction of the Supremes, namely the concluding “… with such Exceptions, and under such Regulations as the Congress shall make.”
Congress could nullify the Roberts Court decision in Dobbs with a simple majority vote on legislation that included Article III language telling the Court to stay in its lane. The same remedy is available for other noxious decisions, if Congress would act.
As a practical matter that won’t happen as long as there’s a filibuster rule.
I’m chagrined that the only solution to the court’s overreach is expanding it. While an argument could be made that adding a few more justices makes sense given that some of them are doubling up on oversight of circuit courts, all this would do is initiate an endless game of chicken as future Republican administrations would add their own justices. And proposals of term limits or age limits aren’t serious as they would require constitutional amendments.
A much better solution would be jurisdiction stripping. The Constitution only grants the Supreme Court original jurisdiction in cases involving ambassadors and states. In all other cases, it has appellate jurisdiction, subject to whatever rules and limits Congress imposes.
I’m proposing stripping the Supreme Court of all appellate jurisdiction, and creating a separate court to hear appellate cases. This court could be constituted any way we wish – any number of justices, age limits, term limits, a fixed number of appointments for each presidential term, or selecting judges at random from the 600+ judges in the federal judiciary and rotating them out every term. This would at least be fair and not give either party an advantage. It would also discourage the spate of new lawsuits we saw after Kavanaugh was appointed, as right-wing groups sought to take advantage of the new conservative majority. If they had no guarantee that they would have a majority the following year, such suits would be a waste of time.
The beauty of this proposal is that it requires no amendment; the tools for it are already in Article III. All that’s needed is the political will to do it.
Outstanding analysis of where we are now. Better than everything else I’ve read.
This is a SCOTUS where 4 of the last 5 judges appointed were by presidents who didn’t win the popular vote, where one seat was stolen by McConnell and the Sedition Party refusing to do their Constitutional duty, and where the three most recent Sedition Party appointees perjured themselves when under oath and testifying before the Senate.
This is a SCOTUS which is rife with corruption and makes decisions on what is best for the oligarchy that has bought them. These decisions are as illegitimate as the court itself.
It is time for Americans to simply ignore these rulings and refuse to abide by them. For example, there is no need for colleges and universities to attempt to change the ruling on affirmative action. All that is necessary is to continue, by whatever means necessary, to provide opportunities for students who have been historically disadvantaged.
Constitution sets rules for how to appoint a Supreme Court Justice, and they were followed, and popular vote is NOT how our constitution prescribes the election of a president. Constitution also prescribes how to change constitution. Constitution has been amended many times.
Disregarding legal rulings has consequences.
Re “sets rules for how to appoint… and they were followed”. That’s (at least) half wrong. The Constitution requires “the advice and consent” of the Senate for SCOTUS nominees. The Senate did not even CONSIDER the nomination of Merrick Garland. No “advice” was given, and no vote was taken, yea or nay. It’s a thoroughly grey area.
The Constitution is not a programming language. It varies wildly between specifics, ambiguities (cf Doug’s previous columns about the 2nd amendment), and general guidelines. The interpretation of the meaning of many parts hangs on a mix of SCOTUS rulings and historical norms. (E.g. previous discussions about the “right to privacy” which exists but appears nowhere in the Constitution nor Amendments.)
This court reads the text of the constitution but does not attempt to interpret what intent the men long ago had, when signing the constitution, as it’s a contract that makes moot any previous discussions or intents or desires, like in a divorce agreement, only the text matters.
Asian students were very happy at restoring equality in admissions based on merit not skin color.
Socially disadvantaged students do not have a level playing field when applying to colleges.
Let’s level the playing field based on social disadvantage. School vouchers allowing parents to choose the best education from pre K to high school.
Demand top colleges take family finances into account by subsidizing studies 0-100% depending on family economy, after admitted passing tests.
Any student with family income under $100,000 should be funded from endowments like Harvard has $50 billion
“The court reads the text… but does not attempt to interpret…” is simply 100% incorrect. It ALWAYS interprets the text (and the intentions of the writers), along with some historical or modern context. This is not just my opinion, EVERY legal scholar would say this… they’d just argue about which is more important (intentions, historical context, modern context).
FWIW: while not a lawyer, I have a lot of experience & knowledge about “intellectual property” law and contracts, and I have been an expert witness in some IP cases.
“Or maybe you envy the way Iran has structured its government.”
Or, as I put it: “If you wanna live in a theocracy, maybe ya / Oughta move to Saudi Arabia!”
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