Declaration of Independence

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Wednesday, July 13, 2022

What Can We Expect from Supreme Court in the Future?

            The United States Supreme Court has been much in the news over the past two months. The 2021-2022 court term has been described as a “block buster” one and “absolutely historic.” Of course, the term was capped by the overturning of Roe v. Wade, “the greatest victory of the conservative legal movement” to save the lives of unborn babies. 

            The Supreme Court had mixed decisions among the one hundred or so cases, some supported by conservatives and some that supported by liberals. However, the decision causing the most consternation among liberals was the one sending the abortion issue back to the states. In the aftermath of the decision, the Senate Judiciary Committee held a hearing about the post-Roe legal landscape in America, and a leftist pro-abortion group offers to pay a bounty for information about the location of any conservative justice that dares to go out in public.

            The current Supreme Court found that Roe v. Wade was not decided on a constitutional basis. There is nothing in the Constitution to support the abomination known as Roe v. Wade. The overturning of Roe v. Wade fixes the mistake made by a previous Court.

            Virginia Allen hosted a podcast with Heritage Foundation legal experts Zack Smith and GianCarlo Canaparo to discuss what is ahead for the Supreme Court.

Smith: And I think it’s interesting, Virginia, because each term there’s typically one, maybe two cases where I think you look at and you say, “Wow, students will be reading this case in their first-year law classes, 10, 15 years from now.” But it seems like this term, there were many, many of those cases, not only the Dobbs case that [Canaparo] was talking about. But there was also an important Second Amendment case, also several important religious liberty cases. And so this really was a blockbuster term in the history of the court.

Canaparo: And don’t forget the sleeper issues were some of the administrative law cases, which we can talk about in some detail. But those, they don’t tend to get noticed as much because they don’t implicate sort of the high-profile political issues of the day. But in many ways, those are actually some of the most important cases the Supreme Court decided this term.

            Allen asked for a brief discussion about the “significance of some of those cases. Canaparo began with the “very beginning … the Constitution.” He discussed the “great genius” of the Constitution being the fact that “it was written law.” Other countries, including Great Britain had constitutions, but none of them were written. Another important thing about the U.S. Constitution is “the idea that power is separated.” You “can’t protect freedom as long as the power over that freedom is in one person or one institution’s hand. So they cut out power.”

            According to Canaparo, the second genius of the government created by the framers of the Constitution is that of the three branches of government. The legislative branch was given the authority to create the laws, the executive branch was given the authority and power to enforce the laws, and the judicial branch was given the authority to interpret the laws and to determine if they are constitutional.

            Canaparo continued by explaining that some presidents, such as Woodrow and Franklin D. Roosevelt, usurped power from Congress and consolidated power in the executive branch. “So these executive branch agencies, the alphabet soup of Washington, have the power to essentially write laws.” There were tasks that legislators did not want to do, so they passed their authority to a willing executive branch. So, the executive branch now has power to make laws, enforce them, and even “power to hear cases and trials about those laws.” He continued:

So you’ve got an enormous amount of power conglomerated in the administrative state and like any sort of power-hoarding body, it grows, it expands its own power. And for many years the judiciary has been OK with that under a doctrine called Chevron and Auer. These re deference doctrines the court has said, “Look, as long as the agency is doing something, that’s sort of reasonable. We’re going to let them just do whatever they want.”

And that has been a big problem for a lot of reasons. Not only is it sort of, as a matter of first principles, wrong on the Constitution, but you get a lot of very progressive types who stock administrative agencies because they tend to be the kinds who think that the government is the salvation of the people and you have just seen the administrative state run away with itself.

And this term, we got a number of cases where the Supreme Court put the [brakes] on that in a pretty big way and said, “Look, no, the legislative power belongs to the people and their representatives in Congress and the executive agencies need to stop this runaway power grab.”

Allen then asked some questions about “this particular Supreme Court as a whole.” She said that people are claiming that this Supreme Court is “much more conservative, maybe in their political views, than other Supreme Courts in past history. She wanted to know if this is “a fair assessment” and how this Court compares to “some of the past sitting courts we’ve seen.” Canaparo explained that there is a small “C” conservative and a big “C” conservative.

So yeah, let me start pushing back on the narrative that what the court does is inherently political. The court is conservative in a small “C” way. But what that really highlights is that there’s two aspects to conservatism.

There is conservatism with a big “C,” where you’re striving for political outcomes, which are conservative. But conservatives have done a good job of developing a method of doing what judges do that is conservative in a small “C” way, but not reaching for politically conservative outcomes.

And what that is, it’s called originalism, when we’re talking about the Constitution or textualism, when we’re talking about statutes. And the principle’s simple. It’s that judges have the power to interpret the law, not the power to make law. And so they need to be constrained by what the law actually says. The meaning of the words on the page.

And this is typically a small “C” conservative position, although there are a lot of very thoughtful, smart, liberal law professors out there, some of the best ones, some of the smartest ones, even on the left, who agree that originalism and textualism is the way to go.

But that process of limiting judges to the text of statutes is often going to produce conservative big “C” political outcomes, simply because it means that the legal process isn’t going to lend itself to new and liberal expressions of the law that don’t preexist them. Right?

So if you want to change the law and you are a liberal and you want a judge to change the law for you, rather than the legislature to rewrite a law, a judge isn’t going to have that power if they are a textualist judge.

So it’s going to lend to small “C” conservative outcomes oftentimes, but not always, but it is a mistake to say that this is political conservatism at work. What it is, it’s judges being restrained. It is judges saying, “The text of a statute, which may have been set down many years ago when social mores were different, for instance, controls until Congress or the people change it themselves.”

So in that way, we have seen a shift. This is really the first time since originalism really took off as an idea and a theory in the ‘80s with Ed Meese and [Robert] Bork and Justice [Antonin] Scalia, this is the first time we have had a majority of the court that is really committed to that idea. And that is really heartening.

There will be growing pains as some of the really aggressive activist decisions of the past are reversed because the court used to think that the judges were philosopher kings who could do what they wanted. But so, we’re going to have some growing pains as we correct those mistakes. But that, in the long run, is a very good thing.

            The discussion then went to the appointment and swearing in of a new justice – Justice Ketanji Brown Jackson. She is the first Black woman to become a justice on the Supreme Court, even though there have been two Black men on it. Justice Jackson is expected to join the liberal side of the court with liberal ideology, although she “echoed to some extent some of those originalist textualist talking points” given by other justices currently on the court. Since she replaces another liberal on the court, Justice Stephen Breyer, the court is still considered to have a “conservative” majority.

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