The SCOTUS: A Weak Reed But Still Our Best Hope?
I’ve made the argument in the past that, feckless though it may seem at times, the SCOTUS—especially the Trump SCOTUS—remains America’s best hope for recovering what is still viable in our constitutional order. Basically, the argument is that the other branches of government and our politics more generally have become dysfunctional. While the Roberts approach of gradualism is sometimes frustrating, while some decisions remain wrongheaded, the Court appears to have taken the bit between its teeth and is doing two things, which have become most evident this week in the decisions on the Administrative State: First, the Court has empowered the federal judiciary to accept citizen challenges to the ukases of the Administrative State, through its agencies, and to examine the administrative regime on a rational basis—no longer deferring to so called “experts”.
Oilfield Rando @Oilfield_Rando
“The experts know how to best rule our lives!”
The experts ruling their own lives:
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Steven Beschloss @StevenBeschloss Jun 28
The arrogance of this Supreme Court to think it knows better how to rule our lives than actual experts is infuriating.
Desert Swarm @Desert__Swarm
It took Covid for me to realize there is no such thing as an “expert”. If you still think there is, you’re a submissive person just wanting to be ruled.
Second, these decisions may, over time, force Congress to forsake its ‘fire and forget’ strategy of “legislation”—pass general bills and empower the agencies to “fill in the blanks” with their own interpretations—and take ownership of the bills they pass. It will be either that or leave it up to the federal judiciary. Trump’s legacy extends to only to his three SCOTUS appointees but also to the federal appellate courts, and it has born fruit.
SCOTUS just overturned Chevron deference, GUTTING the three-letter agencies. This is going to affect every area of our lives
SCOTUS just overturned Chevron deference, GUTTING the three-letter agencies. This is going to...
From notthebee.com
This legacy is the single most important reason to vote for a second Trump administration. Trump is far from perfect, especially in the one other area in which a president retains real power—foreign affairs. But this power of appointment, of transforming, now, the lower federal courts is our best hope going forward. If Congress doesn’t like the results, they’re free to pass new laws, but they’ll need to take ownership of those laws. This Roberts strategy may seem inadequate to our crisis, but it’s the best the SCOTUS can constitutionally do. With the other institutions dysfunctional, it’s our best hope.
Mike Davis, a former Gorsuch clerk, enunciates this same argument, the vision behind these decisions, in light of this weeks blockbuster cases. Twenty years is a long time, but that’s our hope.
Mike Davis: The Federal Judges Are The Swamp Plumbers Who Will Put The Federal Government Back Into Its Place Over The Next 20 Years
1:29
Davis: The political branches are not gonna drain the Swamp, because they are the reptiles. The Executive Branch, Congress? They're not gonna drain the Swamp. No matter how hard Republicans try, that's not gonna happen. You know who's gonna drain the Swamp? The federal judges, the plumbers. Those are the people who are gonna drain the Swamp, because they're going to--over the next 20 years--put the federal government back into its place as the Constitution requires. Congress writes the laws, the President and the Executive Branch enforce the laws, and judges decide cases and controversies--they interpret the laws. We're not gonna have these unelected, unaccountable Executive Branch bureaucrats steal all that power from the other Branches and then steal power that belongs to the States and We the People, as confirmed by the Tenth Amendment. You're gonna see the federal government lose its power and its gonna return to the States and the People, and then you're gonna see the power that remains with the federal government divided among the Branches as it was intended under the Constitution.
Bannon: Amen. That's a vision, brother. They say Trump has no vision? That's the vision. That's MAGA.
That’s the good news, and it’s very real. The bad news is contained in the Murthy case—the Free Speech case—and also in the person of Justice Amy. I know some readers have questioned my seeming lack of respect in using that monicker. In fairness, I also refer to Justice Brett who, along with Roberts and Amy, sh*t in their own mess kits in that case. Roberts and Brett redeemed themselves in other cases, but Amy solidified her reputation as an intellectual lightweight by siding with Kagan and Sotomayor against the J6 political prisoners. That was a case in which even Ketanji went with the conservative, human, wing of the Court. Here’s a twitter exchange, again featuring Mike Davis, that sums it up:
Mike Davis @mrddmia 
ACB = rattled law professor who thinks she’s grading law-school exams instead of exercising sound judgment
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Molly McCann Sanders @molmccann
Reading Amy Coney Barrett’s dissent in Fischer (the J6 obstruction case) is very revealing—a disturbing window into a woman who could be on the court for the next 30 years (or more). Will time teach her wisdom? Let’s pray it does.
9:00 PM · Jun 28, 2024
Because the matter of personnel on the Court is so important, I’m going to quote from some further commentary that focuses on just how wrongheaded Amy’s trashing of Free Speech was. Yes, Brett and Roberts, too. This terrible decision makes the Chevron cases all the more important, and also illustrates the importance of Trump being elected—despite his flaws. A Trump election could at least stave off the worst of FBI censorship and the worst of Admin State meddling with our rights.
We start with a tweet that highlights a truly mind boggling feature of Amy’s opinion in the Free Speech case—she apparently believed that the Hunter laptop letter was for real. That the Hunter laptop was Russian disinformation rather than the Intel Community letter being a CIA/FBI/Bluto Barr disinformation targeting Trump and We the People. Let that sink in. OK?
In the SCOTUS majority decision [written by Amy] about government censorship of social media there is a reference to the HB laptop implying it was foreign disinfo even though it has been proved not to be and was even used in the recent prosecution of HB on gun charges.
How out of it are these people?
And one of the reasons they're so out of it and made this foolish statement is that the truth tellers in this matter were censored early on!
The basis of their decision not to enjoin further gov't censorship was, it can be argued, partly a product of such censorship.
Freaky!
Is that wild or what?
Next up, Jonathan Turley. Turley’s a smart guy. I suspect he’s being kind by not mentioning Amy’s opinion, because he’s huge into Free Speech issues. He also continues to refrain from referring to his friend Bluto’s nefarious role in the whole Hunter laptop scandal—because don’t anyone try to tell me Bluto didn’t know the HB laptop was for real. Turley knew what was going on and was all over it. This is a good article, by the way, but I excerpt the nub of it:
The Art of Being Eternally Shocked: How the Press and Pundits are Again Mystified by the Obvious
No one would think of the Beltway as being a place of the naive innocents of our society. Washington is the only ecosystem composed entirely of apex predators. Yet, this week everyone seems to be eternally shocked by what has been obvious for years.
The press and pundits are coming off an embarrassing couple of weeks where the Hunter Biden laptop was authenticated in federal court as real. This occurred in the trial of the president’s son almost on the anniversary of a debunked letter of intelligence officials claiming that the laptop appeared to be Russian disinformation. Biden then repeated the claim in the last presidential debates to avoid answering questions over the massive influence peddling scheme of this family revealed by the laptop.
After the story was suppressed before the 2020 election, it took years for the media to admit that, oops, the laptop is surprisingly real.
...
The laptop is real, the President is really old, and Washington is really really phony.
The only thing that would be more surprising is if pundits and the press started being a lot less shocked and more honest.
Next up is an article by a law professor, Josh Blackman, that dissects Amy’s opinion. I leave out all the technical stuff about standing. You’ll see, however, that Blackman is stunned at Amy’s cluelessness about what her role as a justice on the SCOTUS is really all about. I preface the excerpt with a tweet by Margot Cleveland. Cleveland is kind in not offering personal criticism of Amy, but characterizes Blackman’s evisceration of Amy as “excellent”—which speaks volumes:
Margot Cleveland @ProfMJCleveland
Excellent read by @JoshMBlackman
You’ll see that Blackman kinda channels Mike Davis’ crack about Amy being a “rattled” law professor. Like, utterly out of her depth.
Justice Barrett adamantly resists the suggestion that she keeps leveling up the burden on plaintiffs, but it is becoming more difficult to deny.
JOSH BLACKMAN
In Murthy v. Missouri, Justice Barrett wrote, "We begin—and end—with standing." And she meant it! Her majority opinion stretches nearly 30 pages, and it focuses entirely on standing. I don't think I've ever read anything quite like it. Not a single plaintiff has standing against a single defendant. Justice Barrett takes a sledgehammer to every single conceivable standing argument, and explains why it won't work. It reminded me of the scene from the Matrix Reloaded where Neo single-handedly destroys every single Agent Smith. Just when you think there are more arguments from the 26,000 page record, Barrett demolishes them. And at the end, she just flies away without touching the merits. Justice Barrett was on a mission! Though, I think the analogy fails, because the dissenters took the red pill.
... The standards she erects are so byzantine, it is unlikely that anyone could ever satisfy them. ...
...
I've made this point before, and I'll make it again. Justice Barrett spent virtually no time in private practice. During her time in academia, she engaged in zero litigation. And she had a very brief stint on the appellate court. She simply lacks the experience of a lawyer who has tried to seek expedited relief in a complex case with a fast-moving timeline. When she asserts that sophisticated litigants failed to meet a burden that is not clearly established in the case law, introspection would suggest that such a burden is not really present. I get the sense that Justice Barrett grades briefs like she would grade a seminar paper–or worse, give feedback at a faculty workshop. She has exceedingly high expectations which are borne based on her subjective sense of which cases belong in federal courts and which do not.
Now, the upshot of Barrett's jurisprudence is that it may keep blue states out of court with a Republican administration. And if tonight's debate was any indication, we may see those suits sooner rather than later. On that note, maybe Chief Justice Roberts should switch his vote to maintain Chevron? It would come in handy come January.
This is a problem. Although, again, it wouldn’t be nearly so large a problem in this case but for Brett and Roberts. However, it’s particularly concerning when you combine it with what else we know about her—the J6 case, her view that Dobbs should have been put off, etc. She’s basically an intellectual lightweight. I don’t doubt she’s “smart” in a narrow, professorial way, but she’s a lightweight taking up a space at a time when depth is sorely needed. It’s not a matter of piling on. There’s a reason why these intelligent legal commentators are so concerned, and it’s because of the pattern of here performance on the Court.
We’ll finish with Robert Barnes:
I suggested that Amy Coney Barrett would not defend Trump or populist causes on a range of important topics. She would not help out in the election. She would not be a reliable vote on vaccines and related issues. She would not be a reliable voice on populist issues in general. I was accused of being a traitor. I was accused of having secret agendas. All that nonsense. Guess who the fourth vote was that was not there to take up the election cases--even the ones after the J6 issues to at least correct the next election? Amy Coney Barrett! Who is it that has refused to rule positively on any major vaccine issue for the most part? Amy Coney Barrett. Who is the one who did not join the majority on the election decision? Amy Coney Barrett.
How disappointing on Judge Barrett. I expected so much more, especially with how ruthlessly she was attacked during her nomination.
Kavanaugh just seemed an upgraded Judge Kennedy, so my expectations were not high.
Gorsuch puzzles me. Most of his decisions I agree with, but a few are curveballs.
If Trump is elected for a third time and actually assumes office, I hope he selects more Judges in the mode of Judge Thomas, a superstar.
This is one of those columns where I say, "You nailed it, unfortunately."