The major question is, what to do about the courts?
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Neil Gorsuch’s mom really hated the agency for which she was the administrator, and now his son has been able to pretend that this hatred is actually constitutional law. Kagan did a good job of explaining the far-reaching implications of the “major questions” offshoot of nondelegation doctrine:
This hyper-activist as well as hyper-partisan Court was so desperate to deny the EPA the ability to address a crisis of immense magnitude it took today’s case although no Clean Power Plan is actually in effect pic.twitter.com/pL9jgQt6GZ— Scott Lemieux (@LemieuxLGM) June 30, 2022
Congress delegated this power to the EPA PRECISELY BECAUSE it might have to address major new problems that could not be immediately foreseen. The Court simply usurps the choices made by Congress because it doesn’t like what the EPA did pic.twitter.com/EeovwTPLWD— Scott Lemieux (@LemieuxLGM) June 30, 2022
The idea that Congress — no matter how clear its statutory language — cannot delegate to the expertise to the executive branch if the problem it seeks to address is TOO important is just epically stupid. Monumentally stupid. Absolutely nothing to recommend the doctrine pic.twitter.com/BcRHIjXk8f— Scott Lemieux (@LemieuxLGM) June 30, 2022
Does this Court care about “tradition” when it does not support the substantive policy outcome it prefers? Absolutely not! pic.twitter.com/xe8uAWDDlI— Scott Lemieux (@LemieuxLGM) June 30, 2022
The Court issues its decision knowing Congress is gridlocked, but even if Congress *could* pass new statutory language there’s every reason to believe nothing could specific enough for this Court, which would nullify the CAA like it’s already nullified the Voting Rights Act— Scott Lemieux (@LemieuxLGM) June 30, 2022
The last point there is the kicker going forward. Between this case, Shelby County, and Brnovich, as Paul says the only operative doctrine is “Democratic congressional majorities and/or presidents are not allowed to govern.” This has been the worst 8-day period in the mostly ignominious history of the Supreme Court, and it’s not an outlier — this is the new reality for the foreseeable future.
The Supreme Court is at this point an incredibly malign institution that is actively destructive of American democracy. There is precious little that a 50-50 Senate is going to be able to do about it — which is one reason the Court has gotten so radical so quickly — but at a minimum Democratic elites need to recognize the problem, and see diminishing the Court’s institutional legitimacy as a goal rather than a regrettable byproduct of its conduct to be avoided.
Institutions merit no inherent presumption of legitimacy; in a democracy, it must be earned. A supermajority imposing a broad policy agenda on the country although the party it represents has won the popular vote once since 1988 deserves none.