The Anti-‘Imperial Supreme Court’

By Noah Rothman

Monday, December 19, 2022

 

The New York Times is alarmed. Or, at least, it is chronicling uncritically the alarm expressed by law professors over the “imperial” direction in which the United States Supreme Court is headed.

 

In a Monday dispatch, Times reporter Adam Liptak cites Stanford University Law Professor Mark Lemley, who warned that the Court is “consolidating its power, systematically undercutting any branch of government, federal or state, that might threaten that power, while at the same time undercutting individual rights.”

 

The latest prompt for this familiar lament was the oral arguments that took place earlier this year in a case involving the claim that state legislatures (in this case, North Carolina’s) are the supreme arbiter of election law, and state courts must take a backseat. Central to this case is the so-called “independent state legislature” theory, which North Carolina’s Republican majority insists justifies its efforts to oppose a state supreme court decision that took the redistricting process out of lawmakers’ hands.

 

Progressives seem to have convinced themselves that “independent state legislature” theory is nothing less than an assault on the U.S. Constitution, as Lemley’s apoplectic tone implies. There are sounder arguments against the theory, and conservative court watchers are not uniformly convinced by its proponents. As National Review’s Bobby Miller wrote, a “hyperliteralist interpretation” of the U.S. Constitution, which reserves for the states the power to set the rules around federal elections ignores how the Framers believed state legislatures fit within our constitutional rubric or the legal conventions governing the conduct of elections. Progressives are wrong to overinterpret this theory as a prelude to a constitutional crisis, Miller writes, but arguments against it are not without merit.

 

Even if the Court’s conservative justices agree with Miller, the Times’ stable of legal scholars contends, the Court has already assumed for itself all but tyrannical authority. Liptak cites a second study published in Presidential Studies Quarterly alleging that the Roberts Court has been “uniquely willing to check executive authority” at the risk of “preserving the balance among the branches or the workings and accountability of the democratic process.” Toward these nefarious ends, the Roberts Court has vigorously reined in the federal government’s most impassive agencies, overruled the verdicts issued by lower federal courts, and updated or overturned long-standing jurisprudential precedents.

 

That’s one way to look at it. Another conclusion observers might draw from the judgments this Court has rendered most recently is not that it is assuming power for itself but disaggregating it across the whole of the Madisonian scheme.

 

This year, the Court determined that Joe Biden was absolutely right when he said he did not possess the legal authority to unilaterally extend the emergency power Congress unconstitutionally vested in the CDC to abrogate the rights of private-property owners. It upheld the rationale articulated by lower courts to strike down the Biden White House’s effort to reimagine OSHA’s authority in such an expansive way that the agency could draft private industry into serving as vaccination police. In West Virginia v. Environmental Protection Agency, the Court reined in an executive agency that was misusing its power to regulate entire economic sectors out of existence and implement programs that Congress explicitly rejected.

 

In New York State Rifle and Pistol Association v. Bruen, the Court found that states cannot erect a series of arbitrary obstacles before you or force you to explain to a judge why you have a “special need” to exercise a right codified in the Constitution’s amendments. Kennedy v. Bremerton High School put to rest the notion that the individual expression of religious sentiments on public property violates the Constitution’s prohibitions on the establishment of a state religion. Most irksome to the progressive mind is the Court’s decision in Dobbs, which struck down the precedents in Roe and Casey citing logic articulated by Ruth Bader Ginsburg and remanded the issue of abortion to the states.

 

In all this, we’re witness to a rare species of judicial imperialism that does not assume authority for itself but distributes it to elected officials, which is where it belongs. Indeed, as Supreme Court Justice Neil Gorsuch wrote back in 2005, the claim that the Court has relied on dubious legal theories to assume quasi-legislative powers for itself is an indictment of the Court’s pre-Roberts iterations. Even then, he notes, progressives recognized that their movement had come to rely on trial lawyers and friendly courtrooms to achieve policy goals they couldn’t otherwise argue the country into pursuing.

 

The unsettled debate over “independent state legislature” theory notwithstanding, the Court spent 2022 not assuming power for itself but apportioning it out, whether its recipients want it or not. This behavior doesn’t comport with the dictionary definition of “imperial” unless the word has joined the pantheon of linguistic flourishes that convey nothing more than the left’s frustration with institutions that resist their will.