We have made it through the worst.
July 1, 2022
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On the last day of the Court’s 2022 term, Ketanji Brown Jackson took the oath to serve as an Associate Justice of the Supreme Court—a historic development that speaks volumes about how far America has come in the last 150 years. Her membership on the Court is a cause for celebration. Let’s hope that her tenure is long and consequential. But until Democrats expand the Court, her role will be limited to dissenting to the overreach of the Court’s reactionary majority. That role might prove important if and when the Court is expanded to include jurists who view fealty to the Constitution as their first and only duty.
On the last day of the Court’s 2022 term, the reactionary majority issued another opinion that overturned long-standing precedent in order to advance the partisan political agenda of the extremist wing of the Republican Party. Once again, the reactionary majority resorted to legal reasoning that is “so bad it is not even wrong.”
In eviscerating the regulatory authority of the EPA to control emissions from coal-fired power plants, the Court assumed the role of a “super-legislature” with the power to overrule any federal regulation that five justices disagree with. In doing so, the Court has unilaterally shifted the “balance of power” carefully crafted by the Framers in the Constitution. And to make matters worse, the effect of the holding will be to dramatically increase carbon dioxide emissions—a greenhouse gas and significant contributor to the climate crisis.
As usual, Ian Millhiser in Vox has done an outstanding job of analyzing the Court’s opinion in West Virginia v. EPA. See Ian Millhiser in Vox, The Supreme Court’s big EPA case is a massive power grab by the justices. As noted by Millhiser, the Court went way out of its way to engage in this “power grab.” The regulation at issue “never took effect [and] that the Biden administration has no intention of reinstating.” Because there was no active “case or controversy” to be resolved, the Court effectively issued an “advisory opinion” (as noted by Justice Kagan in her dissent).
But, having decided to issue a ruling where there was no case or controversy, the reactionary majority applied a judicially created doctrine of recent vintage not mentioned in the Constitution—the so-called “major questions doctrine.” Under the doctrine, the Supreme Court effectively dictates to Congress the specificity with which it must draft legislation in order to grant regulatory authority to agencies.
As noted by Millhiser, “This doctrine comes from nowhere.” It is contrary to the sweeping grants of authority to agencies by the first sessions of Congress, which gave agencies authority over “Indian affairs” and “banking.’ But what was good enough for the Framers and the Founding Fathers does not pass muster with the reactionary majority, which believes that the federal government has become too powerful.
West Virginia v. EPA rewrites the Constitution. As noted by Millhiser, under the “major questions doctrine,”
When a majority of the Supreme Court disagrees with a regulation pushed out by a federal agency, the Court has given itself the power to veto that regulation.
Although the majority opinion engages in more than the customary amount of arm-waving and breast-beating to justify its holding, the majority’s rationale can be distilled to this: “We have a majority, we can do what we want.”
The effect of West Virginia v. EPA is sweeping because its rationale applies to congressional grants to dozens of agencies charged with regulating the largest economy in the world. Now, Congress must assume the work of drafting detailed regulations necessary to provide for a functioning economy that protects the health and safety of consumers and the environment.
West Virginia v. EPA is the latest opinion in the hostile takeover of the Court by the reactionary majority. Mark Joseph Stern, writing in Slate, says that “Vast areas of the law, established over the course of decades, [have been] washed away by a court over a few months.” Stern recaps the damage done in the first full term of the Court’s reactionary super-majority:
Consider the issues SCOTUS has resolved this term—the first full term with a 6–3 conservative supermajority. The constitutional right to abortion: gone. States’ ability to limit guns in public: gone. Tribal sovereignty against state intrusion: gone. Effective constraints around separation of church and state: gone. The ban on prayer in public schools: gone. Effective enforcement of Miranda warnings: gone. The ability to sue violent border agents: gone. The Environmental Protection Agency’s authority to regulate greenhouse gases at power plants: gone.
And it is clear that the reactionary majority is just getting started. On Thursday, it granted review in a North Carolina challenge to the ability of state courts to review the actions of state legislatures in federal elections. Many commentators are discussing the potential outcome of the case in apocalyptic terms. See, e.g., Talking Points Memo, SCOTUS Could Be Poised To Make Future Coup Attempts Easier.
Although the grant of review in the North Carolina case is concerning, I do not share the dire views of many commentators. Why? Because even if the Supreme Court rules that state courts can no longer review the constitutionality of state legislative actions in federal elections, federal courts can still review those actions. I will write on this subject in future editions, but at the moment, I don’t believe the predictions of doom are warranted—and I think everyone should take a deep breath and compose themselves.
In a single term, the Court’s reactionary majority has overturned two centuries of precedent touching vital areas of American social order and settled expectations. It has made a mockery of judicial restraint. It is no longer “calling balls and strikes” but is quickly converting the game of baseball into the new sport of Calvinball, in which players make up the rules as they go along. To say the least, these changes are partisan and revolutionary.
We can fix the Court by the simple expedient of increasing its size. Such a change is far from revolutionary and has occurred on several occasions in the past. It requires only a majority vote in both chambers of Congress and the signature of the president. Of course, Democrats must also create an exception to the filibuster in the Senate to allow a vote on such a bill. The good news is that creating an exception to the filibuster requires only 50 votes plus the Vice President’s vote—which Democrats currently control.
The only thing stopping Democrats from restraining a runaway Court is the will to act. Today, President Biden took a crucial step by announcing support for an exception to the filibuster for national legislation codifying Roe v. Wade. See NYTimes, Biden Endorses Ending Filibuster to Codify Abortion Rights. And, of course, Democrats must expand their current majority in the Senate by at least two votes to account for the irrational support of the filibuster by Senators Manchin and Sinema.
Biden should show the same leadership on expanding the Court that he just demonstrated on reproductive autonomy. Democrats and concerned citizens of all parties should let the President know how strongly they feel about the need to restrain an unbounded, unprincipled, and partisan Court.
More on Cassidy Hutchinson’s testimony.
We now know why the January 6th committee scheduled an emergency hearing to take testimony from Hutchinson. She was one of the two witnesses that Trumpworld tried to pressure before she gave testimony to the committee. See CNN, Cassidy Hutchinson was one of the witnesses Trump world sought to influence, sources say. The Committee knows who attempted to pressure Hutchinson and is considering a criminal referral to the Department of Justice. As in Watergate, the perpetrators may be punished not for the crime, but for the cover-up.
The fact that the 26-year-old Hutchinson was able to resist pressure to shade her testimony in a manner favorable to Trump is a testament to her character. But few others in Trump's orbit have the same moral fiber. We should assume that Trump is working the phones to convince Secret Service Agent Tony Ornato to follow through on his off-the-record offer to contradict Hutchinson’s testimony about Trump’s tussle with Secret Service Agents. But Ornato comes to the Committee with credibility problems of his own. He has a history of denying statements attributed to him by reliable witnesses. See WaPo, Cassidy Hutchinson's testimony isn't the first conversation Ornato has disputed. Per WaPo,
And, very notably, this is hardly the first time Ornato has denied an account of a key White House conversation. It’s now happened on at least three high-profile occasions. And that calls his denials into question, say former Trump aides who stand by Hutchinson. One of them flat-out said Ornato lied in one of his previous denials.
Ms. Hutchinson’s compelling testimony has caused the Trump-friendly Wall Street Journal to begrudgingly acknowledge that the January 6th Committee is raising serious questions about Trump’s fitness to run in 2024. Per the WSJ,
Democrats want to use the Jan. 6 investigation to paint the entire Republican Party as a gang of insurrectionist nuts. The committee is steeped in partisanship. But that doesn’t mean Republicans should look away from the considerable evidence it is producing about Mr. Trump’s behavior that would surely be relevant to voters if he runs in 2024.
If Rupert Murdoch turns on Trump, he will lose support from dark money PACS and corporations seeking to curry favor with Trump. Good.
We have just endured one of the toughest streaks of setbacks and disappointments in the last fifty years. Although the Supreme Court has not done its worst, it has inflicted serious damage to the fabric of democracy and the equality of women in America. Justice Thomas has signaled the next rights to be targeted by the reactionary majority: Same-sex marriage, same-sex relations, and contraception. These are not hypothetical musings by a single reactionary justice. The Texas Attorney General has indicated his willingness to defend that state’s existing “anti-sodomy” law. Such laws remain on the books in fourteen states.
Having endured this disheartening turn of events, our attention now turns to the solution—the 2022 midterms. An election cycle that many Democrats feared now appears to be the first step in our campaign to reclaim democracy and wrest control of the Court from reactionary forces. That prospect should encourage and excite us because we control our destinies at the ballot box—not six unelected justices doing the bidding of the dark money PACs who lobbied for the confirmations.
If you need a few more days to recover from the shock of the Court’s rulings, the Fourth of July weekend is a good opportunity to do so. But we must rally immediately thereafter if we have any hope of controlling Congress for the next two years—a period during which we can dilute the partisan power of the reactionary majority. So, rest, recharge, and find your voice over the weekend. You’re going to need it as never before.
Talk to you on Monday!
Post-script: I am feeling better, but still suffering from multiple symptoms of COVID. I plan to sleep for about 48 hours over the weekend. Thanks to everyone who wrote today. I did not respond to a single email or comment, so please do not take my lack of response personally. I was resting, as all of you have urged me to do.