Over the past few years, the US Supreme Court has engaged on a steady campaign to address systemic problems with US jurisprudence. At least, in my layman's opinion informed by having graduated law school 18 years ago where I focused on constitutional issues. But I assert this is a patient effort to re-establish the Constitution as the document that defines our governance. BLUF: the Court is giving up its claims in political decision making, while reclaiming its legal interpretation authority.
The Founders wrote the Constitution as a tangled mess of interests with the expectation that those interests would selfishly guard themselves. There are two policy/political branches (Legislative and Executive) and one legal branch (Judicial). In 1803, the landmark Marbury v. Madison held that the Supreme Court would stick to legal interpretation and leave the political branches alone. This was in response to the Anti-Federalists under Jefferson purging the judiciary of any Federalist judges. Marbury introduced stability that over the next 25 years solidified the foundation of the US government. Without that, we may well have devolved into competing sections of government... sooner than 1860.
In the 1950s, the Court in Baker v. Carr established the Political Question Doctrine, using six criteria to identify issues that courts should avoid because the Constitution assigns them to other branches or they lack clear legal standards. However, by the 1960s and into the 1970s, the Supreme Court engaged in political decision-making in many cases. If you've heard the epithet "legislating from the bench," that's an implication that SCOTUS may be engaged in a political question that under Marbury and Baker should be avoided.
In law school, my only "A" grade came from a paper on capital punishment. Rather than taking a side in the political question (should we execute criminals and under what circumstance), I argued that the Court erred in its Furman (1972) holding because the holding violated the Baker factors; that it should have stayed within its Constitutional boundaries. I asserted that the modern focus on capital punishment stems from the public reaction to the Court involving itself in politics, even if the people don't understand Baker. Capital Punishment jurisprudence enjoys 52 years of the courts engaging in policy. A late example of the Court overstepping its authority is when it chose to enforce provisions of a treaty the Senate refused to ratify. Given the Senate is the only branch authorized to ratify treaties, that holding (I won't mention the case) was unconstitutional.
When the Court reversed Roe with the Dobbs decision, their holding was largely based in an assertion that the Roe Court involved itself in a political question, which was a usurpation of the Court's authority. It returned the matter of abortion to the policy branches, while simultaneously asserting the Federal Government has no role under the Tenth and Fourteenth Amendment. In other words, the Court reversed on the grounds that Roe was decided in an unconstitutional manner. That politicians and the public were upset by the holding is suggestive of the original holding's political nature. I was gobsmacked when I read the holding as their holding aligned to the logic and remedy that I wrote for my Capital Punishment paper.
Dobbs gave that political question to the States, which is where it belongs per the Tenth Amendment. We forget that the US Government has four branches, not three. States are not explicitly mentioned in the Constitution as its role is to collect legal and political authority previously jealously held by the States. Prior to this, States could declare war, enter into treaties (that bound the others), and the Federal government could not tax nor levy troops; among other things. The State's authority was further reduced by the Fourteenth (extending the Fifth Amendment to states and giving Congress some authority therein), the Sixteenth (allowing direct taxation by the Federal government) and the Seventeenth (direct election of Senators, instead of state legislatures). However, the Tenth Amendment asserts that political power not explicitly given to the Federal government remains with the States. The modern bureaucratic state started in the 1910s, coincidentally after the Sixteenth and Seventeenth were passed (both in 1913).
Great, that talks about political decisions, but what about giving up legal authority? Chevron was a 1980s case where the Court yielded its Constitutional authority to interpret law to the Executive Branch. That is, when Congress passed an ambiguous law, courts should assume the relevant Federal agency is best suited to interpret that ambiguity. As one commentator said, it put the fox in charge of the hen house. Recently, the Court revisited Chevron through a pair of companion cases: Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo. The outcome of these holdings 1) reversed the Court's deferring legal authority to a policy branch, while 2) not disturbing a rash of bad decisions that relied on Chevron over the past forty years. So going forward, courts will use their authority to clarify ambiguity in law.
These three cases combined is an effort to re-establish the boundaries set in the US Constitution. People complain about the outcomes of the case without recognizing this is an effort to return to the first principles that made our country as stable as it was. It forces politicians to do their jobs instead of pushing the political decision to a non-democratic branch. And it forces judges to do their jobs instead of pushing the legal decision to an un-elected bureaucracy. This will ultimately empower the electorate.
The Founders wrote the Constitution as a tangled mess of interests with the expectation that those interests would selfishly guard themselves. There are two policy/political branches (Legislative and Executive) and one legal branch (Judicial). In 1803, the landmark Marbury v. Madison held that the Supreme Court would stick to legal interpretation and leave the political branches alone. This was in response to the Anti-Federalists under Jefferson purging the judiciary of any Federalist judges. Marbury introduced stability that over the next 25 years solidified the foundation of the US government. Without that, we may well have devolved into competing sections of government... sooner than 1860.
In the 1950s, the Court in Baker v. Carr established the Political Question Doctrine, using six criteria to identify issues that courts should avoid because the Constitution assigns them to other branches or they lack clear legal standards. However, by the 1960s and into the 1970s, the Supreme Court engaged in political decision-making in many cases. If you've heard the epithet "legislating from the bench," that's an implication that SCOTUS may be engaged in a political question that under Marbury and Baker should be avoided.
In law school, my only "A" grade came from a paper on capital punishment. Rather than taking a side in the political question (should we execute criminals and under what circumstance), I argued that the Court erred in its Furman (1972) holding because the holding violated the Baker factors; that it should have stayed within its Constitutional boundaries. I asserted that the modern focus on capital punishment stems from the public reaction to the Court involving itself in politics, even if the people don't understand Baker. Capital Punishment jurisprudence enjoys 52 years of the courts engaging in policy. A late example of the Court overstepping its authority is when it chose to enforce provisions of a treaty the Senate refused to ratify. Given the Senate is the only branch authorized to ratify treaties, that holding (I won't mention the case) was unconstitutional.
When the Court reversed Roe with the Dobbs decision, their holding was largely based in an assertion that the Roe Court involved itself in a political question, which was a usurpation of the Court's authority. It returned the matter of abortion to the policy branches, while simultaneously asserting the Federal Government has no role under the Tenth and Fourteenth Amendment. In other words, the Court reversed on the grounds that Roe was decided in an unconstitutional manner. That politicians and the public were upset by the holding is suggestive of the original holding's political nature. I was gobsmacked when I read the holding as their holding aligned to the logic and remedy that I wrote for my Capital Punishment paper.
Dobbs gave that political question to the States, which is where it belongs per the Tenth Amendment. We forget that the US Government has four branches, not three. States are not explicitly mentioned in the Constitution as its role is to collect legal and political authority previously jealously held by the States. Prior to this, States could declare war, enter into treaties (that bound the others), and the Federal government could not tax nor levy troops; among other things. The State's authority was further reduced by the Fourteenth (extending the Fifth Amendment to states and giving Congress some authority therein), the Sixteenth (allowing direct taxation by the Federal government) and the Seventeenth (direct election of Senators, instead of state legislatures). However, the Tenth Amendment asserts that political power not explicitly given to the Federal government remains with the States. The modern bureaucratic state started in the 1910s, coincidentally after the Sixteenth and Seventeenth were passed (both in 1913).
Great, that talks about political decisions, but what about giving up legal authority? Chevron was a 1980s case where the Court yielded its Constitutional authority to interpret law to the Executive Branch. That is, when Congress passed an ambiguous law, courts should assume the relevant Federal agency is best suited to interpret that ambiguity. As one commentator said, it put the fox in charge of the hen house. Recently, the Court revisited Chevron through a pair of companion cases: Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo. The outcome of these holdings 1) reversed the Court's deferring legal authority to a policy branch, while 2) not disturbing a rash of bad decisions that relied on Chevron over the past forty years. So going forward, courts will use their authority to clarify ambiguity in law.
These three cases combined is an effort to re-establish the boundaries set in the US Constitution. People complain about the outcomes of the case without recognizing this is an effort to return to the first principles that made our country as stable as it was. It forces politicians to do their jobs instead of pushing the political decision to a non-democratic branch. And it forces judges to do their jobs instead of pushing the legal decision to an un-elected bureaucracy. This will ultimately empower the electorate.
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Ben
In tenebra solus sto