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WHO’S GONNA CHECK THE SUPREME COURT?  
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Hassan Ali Kanu
May 29, 2024
The American Prospect
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_ This term illustrates that the Court often exercises unjustified
power. _

Justices Sonia Sotomayor (bottom center) and Elena Kagan (bottom
right) have dissented vigorously from the conservative majority's
aggrandizement of power., Tom Williams/CQ Roll Call via AP Images

 

The unmistakable theme of this Supreme Court term has been raw power,
and just how much of it the high court has in our particular system of
democracy, compared with the other branches. 

Today, the Court dropped yet another handful of bombshell decisions
that change and impact national policy and everyday American life in
deeply significant ways, including curtailing the prosecutions of the
insurrectionists who attacked the U.S. Capitol in 2021, and
legitimizing all-encompassing “camping bans” that allow cities to
deploy police to “clear out” unhoused people from public spaces.

Most significantly, the Court also overturned decades-old precedent
that gave federal agencies primary authority to regulate various
aspects of American life, from food safety to workplace policy to
transportation, climate change and the health-care system—much like
any modern government. That power has now been effectively transferred
from federal agencies under the executive branch to the judiciary. 

The idea behind the overturned doctrine is that Congress writes broad
rules covering certain areas, and then delegates responsibility for
the details and broader enforcement to agencies with specialized
expertise. The idea, though it may have to change after this ruling,
is that Congress can’t write detailed laws that cover every
potential human activity that affects people’s health, natural
resources and other matters of public concern, nor can members be
expected to develop deep scientific or technical knowledge over all
those fields. This also allows space for executive power, since the
agencies are staffed at the very top levels by political appointees of
the President. 

That balancing of power between Congress, the President and the
courts, has been explicit for at least 80 years, since the
Administrative Procedure Act was enacted, and the current scheme has
been in place for four decades, established in a case called Chevron
U.S.A., Inc. v. Natural Resources Defense Council. Chevron held that
courts should defer to agency actions and interpretations of the laws
and regulations they administer, so long as Congress hasn’t passed a
law that directly addresses the legal question at hand, and so long as
the agency’s action or answer isn’t patently unreasonable.

Congress has kept Chevron as is for all of those 40 years, as the
liberal justices pointed out in a dissenting opinion. 

But the Court’s right wing overruled that precedent today, saying
the principle of judicial review—the courts’ power to interpret
the Constitution and strike down laws that violate it—means judges
do not have to defer to agency interpretation. 

“Chevron’s presumption is misguided because agencies have no
special competence in resolving statutory ambiguities,” the Court
wrote in Loper Bright Enterprises v. Secretary of Commerce. 

As it happens, the Court on the very same day, and without a hint of
irony, decided that a “handful of federal judges” can’t match
“the collective wisdom” that average American people possess in
deciding how best to handle homelessness. That point came in the
ruling allowing cities to take a draconian law enforcement approach
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to their homelessness and affordable housing crises, as I mentioned
above. 

Not only are the justices empowered to define the shape and scope of
executive branch power, they are in fact able to accrue that power to
themselves, simply by declaring it so.

The Loper Bright ruling furthers a decades-old goal of the
conservative movement to gut the so-called “administrative state,”
to kneecap federal regulation on businesses, in plain terms.  

And it’s a neat example of the Court’s power: not only are the
justices empowered to define the shape and scope of executive branch
power, they are in fact able to accrue that power to themselves,
simply by declaring it so.

Justice Elena Kagan penned a fiery dissent, joined by the other two
liberals. 

“A rule of judicial humility gives way to a rule of judicial
hubris,” Kagan wrote. “All that backs today’s decision is the
majority’s belief that Chevron was wrong–that it gave agencies too
much power and courts not enough.”

The court’s ultra-conservative “majority disdains restraint, and
grasps for power,” Kagan added. 

The word “power” appears roughly 90 times in the ruling (along
with variations like “empower.”). And it’s worth considering,
head on. 

As a basic matter, the Supreme Court has outsize power to knock down
or reshape national policy established by Congress or by the President
and executive branch. That’s often what happens when the Court
“interprets law.” Sometimes, it can also effectively create
national policy, like a robust personal right to firearms
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for example. 

And, in recent years, the Court has had no compunction about flexing
or stretching the bounds  of its immense practical powers in
increasingly brazen ways. By now, that point is so glaringly clear
that perhaps the most spot-on descriptions come from the conservative
justices’ liberal colleagues. 

Last July, for example, the liberal justices took the extraordinary
step
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of writing, in plain terms, that the Court had overreached and taken
actions that exceed its powers and role in our democracy, which is not
something you see very often. 

The court's decision overturning affirmative action in Students for
Fair Admissions v. Harvard  was an "unjustified exercise of power,"
Justice Sonia Sotomayor wrote for the court’s liberals. 

Yesterday, Sotomayor wrote in another decision about agency power that
the Court had ushered in another massive sea change, explicitly
connecting the right-leaning justices to the broader conservative
movement, and suggesting that they don’t simply interpret law:
“Litigants seeking further dismantling of the ‘administrative
state’ have reason to rejoice in their win today, but those of us
who cherish the rule of law have nothing to celebrate,” she wrote.

And Kagan noted in today’s ruling that overturned Chevron that
“this very Term presents yet another example of the Court’s
resolve to roll back agency authority, despite congressional direction
to the contrary,” and without regard to stare decisis, the principle
that courts shouldn’t shake up long-settled laws and practice. 

In recent years, the Court has had no compunction about flexing or
stretching the bounds  of its immense practical powers in
increasingly brazen ways.

“My own defenses of stare decisis—my own dissents to this
Court’s reversals of settled law—by now fill a small volume,”
Kagan wrote, citing the ruling that overturned the constitutional
right to abortion, among other recent major policy changes. 

Besides how they’ve exercised their authority, at least some of the
justices also apparently believe that the other two branches of
government have little or perhaps no power over how they operate, or
to tell them what they can and can’t do. 

John Roberts, the Chief Justice of the Supreme Court and head of the
judicial branch, has refused to testify before Congress twice in the
last two years, in regards to the most serious kind of apparent
ethical violations by his fellow conservative justices. Roberts cited
“separation of powers concerns” as his reasons both times, and in
one letter
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he pointed out that “Congressional testimony from the head of the
Executive Branch”—the president—is “likewise infrequent.” 

Take that analogy to the elected head of state how you will; Justice
Samuel Alito, though, has been much less circumspect.

“Congress did not create the Supreme Court,” Alito said
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last year, in an interview published in the Wall Street Journal’s
opinion section. 

“I know this is a controversial view, but I’m willing to say
it,” he went on.  “No provision in the Constitution gives them
the authority to regulate the Supreme Court—period.”

To be frank, that notion is entirely unserious, both as a matter of
constitutional interpretation,  basic principles of democratic
governance, or just common sense about checks and balances. 

The Constitution says that the “judicial power of the United States,
shall be vested in one Supreme Court” and lower federal courts that
“Congress may from time to time ordain and establish.” In short,
it calls for the establishment of a Supreme Court, but their power
comes from Congress, as does their rules of operation, like how many
justices sit on the Court.

Alito’s point likely prompted a sort of rebuke from one of the
liberal justices, again: days after his comment, Kagan said
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during a judicial conference that “Of course Congress can regulate
various aspects of what the Supreme Court does.” 

““It just can’t be that the court is the only institution that
somehow is not subject to any checks and balances from anybody
else,” she said, adding, “I mean, we are not imperial.”

That point is obviously correct. Still, whether or not her
conservative colleagues agree seems to be an open question. And the
way the court exercises its power certainly suggests that the six
justices in the conservative majority might just be the supreme rulers
of the United States, at least as a practical matter. 

As some have
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suggested
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Congress and the President—you know, the other co-equal
branches—might want to do something about that. 

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Hassan Ali Kanu [[link removed]]

Prospect staff writer Hassan Ali Kanu is an award-winning reporter
covering everything from courts and access to justice, to politics,
labor, and more. He is a Sierra Leonean, now living in Washington,
D.C. Follow @hassankanu

* Supreme Court; Chevron U.S.A.
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* Inc. v. Natural Resources Defense Council; Balance of Powers;
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