The United States Supreme Court is more conservative today than it has been since the 1930s. She is also more certain of her own power than any other judge since Franklin Roosevelt's administration. And it's quite eager to wipe out fundamental precedents that have been in place for decades, sometimes without much warning that a transformative decision is about to come.
Consider the recent court ruling that turned five decades of abortion law upside down. With the entry into force of Texas law banning at least 85 percent of abortions, judges did not obey any of the procedural norms their predecessors typically adhered to before turning a famous Supreme Court precedent on its head.
The order that allows the Texas Anti-Abortion Act to come into effect is a paragraph long. It does not even attempt to deal with the legal issues raised by this law. And it was decided on the “shadow file of the court”, a mixture of urgency motions and other rash cases that are only superficially informed before being decided by the judges. In total, the judges appear to have spent about two days pondering this case before messing up half a century of law.
As Atlantic's Adam Serwer wrote: "It would have taken time to neutralize Roe through normal channels, and the Conservatives of the Supreme Court didn't want to wait." and because they believe that no one can stop them ”.
Such behavior, in which Conservative judges deliver blanket judgments while briefly pondering what they are doing, is now a regular Supreme Court affair.
To be clear, the shadow list is not a new phenomenon. In the past, lower courts have occasionally made decisions that were so inconsistent with applicable law that judges had to intervene to maintain their authority. In 2019, for example, the court temporarily blocked an anti-abortion law in Louisiana that was identical to another law the court repealed several years earlier after a lower court refused to block it.
But under President Donald Trump, both shadow orders became more common and (apart from the Louisiana abortion order) more consistently conservative.
Three years ago, Judge Sonia Sotomayor warned that her court was doing the Trump administration "extraordinary" favors. According to law professor Steve Vladeck at the University of Texas, the Supreme Court issued 28 shadow procedural codes blocking lower court judgments against the Trump administration while the Justice Department appealed. (Although the Biden administration is still young, two early cases suggest that the Conservative court will not show similar deference to a Democratic president.)
Similarly, at the height of the pandemic, the court issued two important landmark rulings on its shadow acts that revolutionized the court's approach to "religious freedom" cases – potentially turning worship services into superspreader events and disregarding three decades-old precedent in the trial.
If the story here was simple, that it took the judges days to resolve difficult legal issues that they had pondered for months, it would be deeply worrying. With the Court of Justice having the final say on federal law issues, mistakes cannot be easily corrected in a rashly ruled case by the Supreme Court. Often these errors can only be corrected by amending the constitution or by changing the composition of the court itself.
But the emergence of shadow procedural rules not only shows the impatience of the conservative majority in the Court of Justice to re-enact the law in their own image. These orders are also a symptom of two broader trends within federal courts.
The first is that the new majority in the Court of Justice is increasingly pleased with its own power and increasingly hostile to longstanding doctrines warning judges to turn to elected officials in matters where the courts lack expertise. For example, the Court has begun to move into areas such as foreign policy, social policy and the conduct of executive bodies, where it has shown great reluctance in the past.
The second trend is that the political polarization that drives much of American politics is also infecting the judiciary. When the Supreme Court stepped in to block a lower court ruling against the Trump administration, that lower court order was often appointed by the Democrats. Now that Biden is in office, Republican litigants are looking for Trump officials who treat many longstanding legal doctrines as if they were illegitimate.
This polarization is forcing the Supreme Court to resolve conflicts between two very different camps of judges. And the court, with its conservative majority of 6: 3, is hardly a neutral arbitrator in these disputes. The growth in the court's shadow acts most likely reflects the impatience of many judges to brush aside previous, left-wing decisions that have resented them throughout their careers.
Decisions like Roe v. Calf.
The era of judicial humility, briefly explained
Understanding the last century of American constitutional law must begin with a nearly nine-decade-old conflict between President Franklin D. Roosevelt and the Supreme Court.
Beginning in the late 19th century, the court issued a series of decisions that sabotaged the government's power to regulate the economy, and especially the workplace. The court often relied on flimsy or completely fabricated legal arguments and overturned federal child labor laws and minimum wage laws. It deprived workers of their right to unionize and banned many laws preventing employers from overworking their workers.
After Roosevelt took office, the court became a persistent thorn in his side, knocking down existing New Deal programs and jeopardizing others with its narrow view of the government's power to respond to the Great Depression.
It was such a thorn in the side that Roosevelt famously threatened to win seats in the Supreme Court in order to dilute the influence of anti-New Deal judges. (This suggestion turned out to be unnecessary, because the court secretly voted to override many of its earlier decisions that had undermined liberal reforms when Roosevelt announced his plan for the trial.)
When the court became vacant due to retirements or deaths, Roosevelt did not contradict the Conservative votes by populating the court with judges who would implement the New Deal from the bank. Instead, he filled the court with judges who largely avoided him and let the two elected branches rule.
“The basic democracy of our nation and the security of our people do not depend on the absence of power,” said Roosevelt in his second inaugural address, reprimanding the business liberals before the Supreme Court, “but on placing them with those the people can get through Change or continue an honest and free electoral system at set intervals. ”The Constitution, added Roosevelt,“ did not make our democracy swoon ”.
Roosevelt's efforts to build a more humble, less activist Supreme Court culminated in the Court's decision in the United States v. Carolene Products (1938), a decision that probably did more to shape 20th century US law than any other case in the history of the court.
It is Carolene Products' intention that courts should assume that most laws, and particularly laws that "affect normal commercial transactions," are constitutional and should be complied with. A few examples were then given of cases where this presumption should not hold – when a law violates a “specific prohibition of the Constitution”, when a law undermines democracy, or when it discriminates against politically disadvantaged groups such as racial minorities as inferior.
Thus, under Carolene Products, the court would play a much smaller role in American society than it did in the first third of the 20th century. And when judges intervened, they often did so to ensure that public order was the will of the public or to protect democracy.
During the 20th century the Court of Justice issued many decisions and important doctrines warning that unelected judges should play a limited role in a democracy – two more of which are worth mentioning here. The first is Chevron v. Natural Resources Defense Council (1984) which found that courts should often turn to federal agencies when those agencies are exercising their legal powers to regulate businesses and individuals.
Similar to Carolene Products, the Chevron decision is rooted in the idea that courts have limited expertise and even more limited legitimacy because federal judges are not elected. Although "agencies are not directly accountable to the people," wrote Judge John Paul Stevens for his court, the president who appoints the heads of the agencies is accountable through elections. And so it is "perfectly appropriate for this political branch of government to make such political decisions."
If the courts have the choice of determining policy by an executive whose leader is elected or by unelected judges, the courts should err on the democratic side.
The Supreme Court has also repeatedly warned that judges should be extra cautious about "unjustified judicial interference in foreign policy". In fact, the court only repeated this caution in its Trump v. Hawaii (2018) ruling, which upheld a version of Trump's Muslim ban. Matters that "may imply relations with foreign powers," wrote Chief Justice John Roberts for his Hawaiian Court, require the United States to deliver judgments that "are often of a legislative or executive character."
As anti-abortionists believed in judicial humility
Granted, Roe fits a bit awkwardly with Carolene Products' demand for judicial deference to elected lawmakers – why can't lawmakers like the one in Texas ban abortion?
The best answer to this question is provided by Ruth Bader Ginsburg, who in 1992, in a lecture that she gave as a judge at a lower court, argued that the constitutional right to abortion ensures equal participation of women in a democratic society. Women, according to Ginsburg's lecture, are a politically disadvantaged group who must have control over their reproductive life in order to “participate equally in the economic and social life of the nation”.
While you may not be convinced by this political equality argument for the right to abortion, it is telling that the Republican leadership initially failed to respond to Roe by demanding that the court impose conservative policies on the bank. The most powerful opponents of abortion law saw Roe as a warning to allow judges to exercise too much power. In at least the 1980s, 1990s, and early 2000s, Republicans typically argued that the solution for Roe was to reduce the role of the judiciary in shaping American law.
President Ronald Reagan, for example, promised to appoint judges who would show “judicial restraint”. President George W. Bush warned that judges who legislate too quickly are "a threat to our democracy and it must stop." In a 2006 address, Michael Chertoff, then Bush cabinet member and former federal judge, praised the conservative Federalist Society as one of the most powerful opponents of an overly powerful judiciary.
"Because of the work that the Society and others have done," Chertoff said of the organization that would later play an outsize role in the selection of President Trump's judicial candidates, "the claim to judicial humility is well-founded that" everyone understands , even the critics of this claim that they take it seriously and have to deal with it. "
At the Supreme Court itself, Roe's fiercest critic based his legal philosophy on the idea that there must be limitations on judicial discretion to prevent the court from ensuring things like the protection of the right to abortion. "The main danger in judicial interpretation of the Constitution," said the late Judge Antonin Scalia in a 1988 lecture in which he explained his "originalist" approach, "is that the judges confuse their own preferences with the law."
In other words, the conservatives of the era saw Roe as a reason to fear the judiciary. The idea that the Supreme Court would abandon decisions like Carolene Products and Chevron wasn't even on the table. Conservative rhetoric was more prone to legal humility than the rhetoric of its liberal counterparts.
The end of judicial restraint
But now the court's venerable doctrines of judicial humility have fallen out of favor with the current Supreme Court, and especially with its most conservative members.
NFIB v. Sebelius (2012), the first major lawsuit against the Affordable Care Act, was also a direct attack on Carolene Products' belief that judges should postpone Congressional decisions on regulating the economy. It is simply inconceivable that Carolene Products loyal judges would have taken this lawsuit seriously because it asked the court to untangle a law that would comprehensively regulate the entire health care sector of the economy.
Indeed, Liberal judges who remained loyal to Carolene Products did not take this lawsuit seriously. Neither did some old-school conservatives who clung to the more humble values of an earlier era.
For example, Judge Laurence Silberman is a prominent Conservative who received the Presidential Medal of Freedom from President George W. Bush. He dismissed the plaintiffs' arguments in a case that shared the same problems as the NFIB, saying that they had no basis "either in the text of the Constitution or in the precedent of the Supreme Court". As Silberman noted, the "primary consideration" in the Obamacare lawsuits was Carolene Product's warning that courts "should presume that the actions of Congress are constitutional."
Still, four judges in the NFIB voted for Obamacare to be repealed entirely. Since then, Ginsburg (who voted for Obamacare) has died and has been replaced by Judge Amy Coney Barrett – a critic of the court's decision in NFIB. Had Barrett held the seat of Ginsburg in 2012, it would be likely that the Affordable Care Act, and with it the Carolene Products framework, would have been abolished.
(Notably, Roberts Court also rejects Carolene Products' argument that judges should intervene when elected lawmakers seek to undermine democracy – as evidenced by the court's decisions that bless partisan gerrymandering and the dissolution of almost all of the voting law.)
While the judges of the 20th
Decisions like Chevron urged judges to turn to executive officials because those officials are accountable to an elected leader and thus have greater democratic legitimacy. However, in a 2016 statement, then-Judge Neil Gorsuch turned this argument on its head, claiming that it was better for unelected judges to set federal policy than leave that decision to the executive branch.
In Gorsuch's view, judges are "independent decision-makers" whose job it is to "explain the meaning of the law as fairly as possible," while officials in the executive branch are "politicized" and eager to "pursue any political whim of the day." ruled. “In Gorsuch's approach, the fact that civil servants' decisions are likely to be shaped by elections is a vice, not a virtue. It is better to concentrate power in the judiciary.
And a majority of the judges seem to agree with Gorsuch. In a dissenting statement in Gundy v. The United States (2019), Gorsuch called for the revival of the nondelegation doctrine and allowing judges to veto federal regulations. Since then, a majority of justices supported Gorsuch's plan to give the Tribunal these powers.
The court made one of its most surprising decisions to part with its earlier demands for judicial humility last month, in a shadow trial that restored Trump's "stay in Mexico" policy, at least temporarily.
This policy requires many asylum seekers in the United States to remain in Mexico while they await a hearing on their asylum application. Nor is it a policy that can be implemented unilaterally. The Trump administration pledged Mexico's cooperation before this policy took effect. The Biden government must also seek approval from Mexico before it can reinstate this policy that it abandoned at the beginning of the Biden presidency.
In contrast to the Court's longstanding warnings of "unjustified judicial interference with foreign policy," the court effectively ordered the Biden government to enter into negotiations with another nation in an attempt to convince that nation to cooperate with a policy with which Nor does Biden agree that America's influence is being used well with the Mexican government.
This is a huge expansion of the role of the judiciary that could have profound implications for all of US foreign policy. If judges can order the executive branch to change its foreign policy without warning, how can other nations trust the promises of the State Department? And what should a foreign leader do if he demands a concession from the United States that the judiciary frowns upon? Call Brett Kavanaugh and negotiate with him?
In other words, the Supreme Court is entering areas where it has little expertise and does not even have the staff to make informed decisions (the State Department employs around 13,000 field service agents to conduct diplomacy with other nations ; an Associate Justice, in contrast, has four clerks).
For decades, the Court has warned other judges not to rule on issues where the judiciary does not have to rule. Now, however, the conservative judges at the court seem to think they are all powerful – and that they can decide even complex political questions after briefly examining a case that lands on their shadow list.
The court is now more partisan than ever
In 2010, President Barack Obama replaced retired Judge Stevens with current Judge Elena Kagan. Stevens, appointed to the court by President Gerald Ford, was the last Republican representative to vote fairly consistently with the liberal bloc of the Supreme Court.
When Kagan took this seat, it meant that the court had a bloc of five Conservatives, all appointed by Republicans, and a bloc of four Liberals, all appointed by Democrats. (After Ginsburg's death, Conservative Republicans now control six seats.)
This orientation, in which the surest measure of the ideology of a judiciary is the party of the president who appointed it, is a very new development. In the past, the court included Liberal or moderate Republican and Conservative or moderate Democratic MPs. Roe was a 7-2 decision, with three judges appointed in the majority by Republican President Richard Nixon. Two of the dissenting judges in Bush v. Gore (2000) who handed the presidency to Republican George W. Bush were appointed by Republican presidents.
In the broader sense, federal justice has become more of a partisan institution. Since the two parties have polarized along ideological lines, they have very clear ideas about how judges should act. And both now have sophisticated networks that help them identify ideologically pure justice candidates.
Trump relied largely on the Federalist Society, which identifies talented, highly conservative attorneys before they even graduate from law school, in selecting candidates for justice. While no single organization plays a similar role for the Democrats, the typical Biden candidate is a civil rights attorney, public defender, or other liberal attorney with an Ivy League degree and elite legal credentials. In recent years at least, the two parties are seldom mistaken in believing they have identified an ideologically reliable judge – and they are particularly unlikely to be mistaken on high-level Supreme Court appointments.
This partisan split within the judiciary is evident in the shadow trials of the Court of Justice. Of the 28 shadow trials identified by Vladeck, the law professor, in which the court granted full or partial discharge to the Trump administration, 21 blocked either a decision by a Democratic President-appointed district judge or, if the final court considered the case, blocked one Appeals court a decision of a judicial body in which the Democratic MPs were in the majority.
This trend, in which decisions by predominantly Democratic judges are treated with particular skepticism by a Republican Supreme Court, is likely to accelerate in the future. Judges appointed at a time when the courts were less polarized resign and are replaced by either loyal Federal Society or lawyers recommended to a Democratic president by a liberal pressure group.
And as judges become more and more partisan, the Supreme Court stands ready to overturn many of the doctrinal safeguards that have been used to prevent the judiciary from interfering too often in inherently political decisions.
It's a terrible recipe for democracy. At the same time, the one branch of government that was not elected becomes less reticent, more partisan and avoids questions for which judges are not competent.
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