The Supreme Court is making governing difficult
Justice Ketanji Brown Jackson took the bench on Thursday. She's joining a court that's making governing increasingly difficult. And: An update on that possible anti-abortion judicial pick.
Justice Ketanji Brown Jackson is now an associate justice of the Supreme Court.
Thursday was a day for celebration. Jackson broke another barrier in a career of breaking barriers. She is the first Black woman justice in United States history. She is now on a court that is, for the first time in history, not made up of a majority of [cis, straight] white men. All of her fellow Democratic appointees are women.
There are only three Democratic appointees on the nine-person court.
The six Republican appointees, meanwhile, made clear this term that they are comfortable dismantling protections that have enabled our democracy to move forward and allowed us to live together.
The right to an abortion was overturned, after nearly 50 years, based, in part, on a test that requires us to rely on history to determine whether something is constitutional or not today.
The test for deciding whether government actions violate the Establishment Clause was tossed out after more than 50 years, replaced by a tilted test that relies on historical practices for deciding whether a government is violating the clause.
Gun restrictions were rejected, with — yes, you guessed it — a test based on history used to toss out New York’s restrictive handgun registration law.
There are many problems with this approach to living in the year 2022, not the least of which is that we’ve learned a lot since the Bill of Rights were adopted in 1791. Much more on the problems of this extreme brand of originalism later on, but that wasn’t all.
On Thursday, the court continued its path of destruction, ruling — in an opinion by Chief Justice John Roberts — that the Clean Air Act doesn’t give the Environmental Protection Agency the ability to regulate things companies put into our air that are destroying our planet in the way that the agency tried to regulate them.
The court did this in a ruling that expanded upon and solidified the use of the “major questions” doctrine, which is, I fear, becoming a catch-all ~legal theory~ for “five or six reactionary justices decided we don’t like this executive action because it actually does something.” (We saw it in use earlier this year, per Justice Neil Gorsuch, when the court rejected the Biden administration’s vaccine-or-test workplace rule.)
It’s not good, and it’s going to be used by conservatives in the coming years to challenge all sorts of regulations.
There is, in fact, overlap here between the right’s tests (that are just as made up as any tests for judging cases that those on the right have criticized in the past). Both history-based and “major questions” tests tilt the scales of justice for the right. If you don’t want modern developments to influence how we view our Constitution, say decisions have to be based on what people thought in the late 1700s or the mid-1860s. If you don’t want government regulation, say big decisions have to be explicitly, specifically authorized — how explicit? how specific? we’ll see! — by federal laws.
This path prevents constitutional provisions from being given forward-looking effect and it stymies forward-looking statutes. The Constitution is stuck in the past, and new laws must successfully be passed by a new Congress to address any changed circumstance whenever the Supreme Court’s majority decides that a changed circumstance raises a “major question.”
That is the court that Justice Ketanji Brown Jackson has joined.
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THERE’S MORE: After the court released its final decisions for the term and before Justice Jackson took her oaths, the court issued one last set of orders. In there, the court agreed to take up a case addressing whether the “independent state legislature” theory is an out-of-bounds, made-up rant or a doctrine of constitutional law.
If accepted, the idea would essentially take state courts out of the business of reviewing their state’s laws governing federal elections.
Rick Hasen is a must-read on election law issues, and here is how he frames things at Slate:
This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights in federal elections. It also could provide the path for election subversion in congressional and presidential elections.
It’s as big a case as the court could take next term. Expect much more on this.
SCOTUS, THREADED: There was, as Jason Steed tweet out, so much more that happened at the Supreme Court that is bad for democracy — primarily in criminal law and immigration law cases, but in many other areas of the law as well. Go check out his thread.
UNBELIEVABLE: On Friday afternoon, Mark Joseph Stern at Slate confirmed that President Biden has “struck a deal” with Senate Minority Leader Mitch McConnell to name Chad Meredith, an anti-abortion lawyer who has worked for statewide Republicans in Kentucky, to the federal bench. In exchange, Stern wrote, Biden is going to get two US Attorneys confirmed.
The Louisville Courier Journal, earlier Friday, reported that there was now an announced vacancy in the Eastern District of Kentucky: Judge Karen Caldwell (E.D. KY), a George W. Bush appointee. (The lack of a vacancy was a prominent question raised by the initial reporting about this debacle, which I covered on Thursday.)
In addition to the scope of their jobs, a federal judge has lifetime tenure once confirmed. US Attorneys, on the other hand, do not and are regularly replaced when new presidents come into office.
This is such a bad deal on so many levels, as I explained in a bit of a rant of my own on Twitter:
It’s an offensively, unfathomably bad deal, not the least of which is because it’s just not needed. There are lots of other paths for choosing US Attorneys, as the Trump administration showed repeatedly.