New York Times Supreme Court reporter Adam Liptak sounded his latest alarm about the dangerously conservative Supreme Court in Tuesday’s paper. The online headline deck: “An ‘Imperial Supreme Court’ Asserts Its Power, Alarming Scholars -- Several new studies document the current court’s distinctive insistence on its dominance and the justices’ willingness to use procedural shortcuts to achieve it.”
After decades of decisions expanding the reach of the federal government by liberal Supreme Courts, on abortion, regulation, education, affirmative action, religion, gay marriage, etc., now it’s alarming if there’s any kind of push in the direction back toward Congress or the states.
Liptak expanded upon his previously expressed hostility toward what he considers a dangerously conservative court, backed up by several cherry-picked law review studies: The Supreme Court is not just right-wing, it’s power-hungry as well.
The conventional critique of the Supreme Court these days is that it has lurched to the right and is out of step with the public on many issues. That is true so far as it goes.
But a burst of recent legal scholarship makes a deeper point, saying the current court is distinctive in a different way: It has rapidly been accumulating power at the expense of every other part of the government.
The phenomenon was documented last month by Mark A. Lemley, a law professor at Stanford, in an article called “The Imperial Supreme Court” in The Harvard Law Review.
“The court has not been favoring one branch of government over another, or favoring states over the federal government, or the rights of people over governments,” Professor Lemley wrote. “Rather, it is withdrawing power from all of them at once.”
It’s no shock Liptak would go after the Supreme Court for limiting the federal government’s power. For example, the paper hates rulings that would restrain its favorite Environmental Protection Agency’s often arbitrary anti-business rulings. Liptak sided with a liberal justice.
In a similar vein, Justice Elena Kagan noted the majority’s imperial impulses in a dissent from a decision in June that limited the Environmental Protection Agency’s ability to address climate change.
“The court appoints itself -- instead of Congress or the expert agency -- the decision maker on climate policy,” she wrote. “I cannot think of many things more frightening.”
Quin Hillyer at the Washington Examiner argued Liptak has it backwards.
The court is ensuring that Congress, not the executive or judicial branches of government, actually does the legislating…. Rather than seize power for itself, the court is insisting that states abide by the Constitution’s reservation of individual rights to the states’ citizens. The constitutional liberties and the citizens who use them, not the judges, command authority.
The court is not "imperial" at all. It's deferential, but apparently Congress doesn't want responsibility for legislating.
