The Modest Court

That the Supreme Court of the United States is in the midst of seizing power is the latest take from the New York Times. Its star columnist, Jamelle Bouie, writes on the “judicial power grab of the past several years, in which courts across the federal judiciary have seized key governing decisions from the legislative and executive branches.” He seems to be suggesting that we’re watching something like a slow-motion coup.Some coup, though. This court strikes us as interested more in refunding power to its sister branches of government than in retaining it for itself. That finds its cleanest expression in Dobbs v. Jackson Women’s Health Organization. In reversing Roe v. Wade, Justice Samuel Alito’s majority opinion finds that “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Return to sender.Those on the left can disagree with Dobbs’s outcome, but it’s not a seizure of power, it’s a relinquishment. Justice Alito castigates his predecessors for usurping the “power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” This has come to pass, as abortion has become an electoral and legislative issue, as it was before Roe’s dispensation. It’s not just Dobbs. In West Virginia v. EPA, the same six to three court that decided Dobbs limits the Environmental Protection Agency’s ability to regulate carbon monoxide emissions. Chief Justice Roberts’s majority decision holds that “both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there.”This approach, known as the “major questions doctrine,” requires that on matters of significance, a government agency “must point to ‘clear congressional authorization’ for the power it claims.” In concurrence, Justice Neil Gorsuch notes that this judicial orientation “seeks to protect against ‘unintentional, oblique, or otherwise unlikely’ intrusions” when it comes to “self-government, equality, fair notice, federalism, and the separation of powers.”Justice Elena Kagan does not see things quite the same way, writing for the dissenters that the Court “appoints itself — instead of Congress or the expert agency — the decision-maker on climate policy. I cannot think of many things more frightening.” She added that the high bench “does not have a clue about how to address climate change.” We’re with Justice Gorsuch, and Professor Philip Hamburger, in looking for clarity from Congress. The most lurid fears of a high court takeover centered on Moore v. Harper and its invocation of the so-called “independent legislature” theory, which held that the Constitution assigns sole responsibility for federal elections to state lawmakers. While the Nine agreed to hear the case, they ultimately demurred, and it is unfolding in North Carolina courts. Forget Mr. Bouie’s “power grab;” under this court, key questions are to be answered democratically.Let’s hope this trend holds as the court’s current term comes into the stretch. If the justices strike down President Biden’s student loan forgiveness plan, it is likely that the court’s critics will howl that it has again inserted itself where it does not belong. That distinction, though, belongs to Mr. Biden, whose overreach disturbs Congress’s power of the purse. If anything is being “seized” here, it is by the Executive, not the justices.

The Modest Court

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