The conservative majority on the Supreme Court is on a crusade against the modern structure of the federal government.
In two cases recently decided, the court threatened our prosperity, health and the many protections that the government has provided to citizens from the Progressive Era, through the New Deal, to the present.
It is time to revisit an age-old question that must be central in the campaign for democracy: Why does the Supreme Court get to make these decisions?
While Securities and Exchange Commission v Jarkesy and Loper-Bright Enterprises v Raimondo deal with different issues, they raise the same question: Who decides?
Jarkesy asks who decides what the Constitution requires when the text is silent and reasonable people disagree. Loper-Bright asks who decides what a statute requires when the text and traditional interpretive sources provide no answer.
In Jarkesy, the candidates for decider were Congress and the courts. Responding to the 2008 financial collapse, Congress sought to enforce securities laws in a way that protects the rights of accused fraudsters, their alleged victims and the American economy. It expanded the SEC’s authority to try cases in front of neutral agency experts, overseen by appointed officials and the courts.
Congress has taken a similar approach more than 200 times over more than a century, and the courts have approved. The court was asked whether to let Congress continue its role or to make itself the decider.
In Loper-Bright, the candidates are administrative agencies and the courts. For 40 years, expert agencies have filled in the gaps in federal statutes, and the courts have honored those interpretations. The court was asked whether to let the agencies continue their role or to make itself the decider.
In both cases, the court made itself the decider.
Why should unelected and generalist judges, instead of elected members of Congress and expert agencies, fill in gaps in the law? Let’s consider a few potential answers.
First off, you might say, the justices are wicked smart, right? They write thoughtful explanations for their actions, carefully parsing past precedents and other appropriate sources.
Considering Jarkesy and Loper-Bright together reveals the fallacy in this argument. Both cases involve an admitted break with the past. Loper-Bright forthrightly overturns 40 years of precedent. Jarkesy simply admits that the court’s relevant precedents “have not always spoken in precise terms” and goes on to focus on those that (arguably) support its conclusion.
If the court’s ability to develop consistent legal principles over time is generally a reason to defer to it, that reason is not relevant here.
More broadly, the Jarkesy opinion obsesses over one kind of evidence while ignoring all others. The court (and particularly Justice Gorsuch’s concurrence) takes pains to show that America’s founders wanted some cases to go to courts and not non-judicial tribunals, without doing much to clarify which cases should make the trip.
Notably, the historical record leads the Jarkesy majority not only to a different conclusion than the one reached by the dissent, but to a different conclusion than the one reached by past court majorities relying on the same record. If history is guiding the court, it is a fickle guide.
In fairness, this is unsurprising. The Founders probably did not have clear opinions on how to answer questions they never faced, in a world they never saw, with stakes they probably could not imagine.
Amusingly, when the Supreme Court faces statutory questions — like the ones under Loper-Bright — it abandons its focus on history. With statutory cases, the relevant historical actors acted more recently, experienced conditions more similar to the ones we face, and expressed their views through clearer, more official statements.
But the Supreme Court’s view of legislative history, as opposed to history from the Founding Era, is “hands off.” Far from being models of neutral decision-making, the court’s methods are at war with themselves.
More importantly, the Jarkesy opinion lacks any attention to the concerns that faced Congress. Nowhere does the court ask how corporate fraud can be prevented and how the American economy can be protected.
Americans want to defend individual rights in a way that does not bring the American economy crashing down. I suspect the Founders felt the same way. But in the court’s opinion, the well-being of the American people is not balanced against competing objectives, as it was when Congress wrote the relevant laws. It is simply ignored.
So if the wicked smart justices write woefully incomplete opinions, are there other reasons to defer to them?
Scholars have long argued that we can trust the Supreme Court to interpret the Constitution because it will not depart very far, or for very long, from public opinion. For a time, this was generally true. Presidential appointment and Senate confirmation generally assured a judiciary that might push back on the public’s impulses but would rarely impose an agenda inconsistent with the public’s core values.
This court is different.
Three of its nine members were appointed by a president who never won the popular vote. At least four, and arguably five, were approved by senators representing less than half of the American people, an unprecedented situation. Roberts, and arguably Alito, are the only conservative justices supported by a president and Senate representing a national majority.
But rather than tack to the middle, the court has repeatedly blocked the elected branches from taking actions they see as essential to protect the American people.
Scholars have also defended the court as an institution designed to protect “discrete and insular minorities.” But with Jarkesy, far from protecting vulnerable minorities, the court placed yet another thumb on the scale in favor of wealthy and powerful interests already well-represented in Washington.
And there is little reason to think Loper-Bright will do much for persecuted minority groups either. The court’s record of invalidating rules that prevent the strong from harming the weak suggests much the opposite.
Judicial power is often defended based on a Latin slogan, “Nemo iudex in causa sua,” meaning, nobody shall be judge in their own case. It stands for the idea that Congress cannot be allowed to decide what the Constitution means because that would allow Congress to determine the limits of its own power.
Jarkesy and Loper-Bright stand that logic on its head. In the statutes at issue in Jarkesy, Congress had committed important and technical questions to one branch of government (the executive) overseen by another (the judiciary). It did so without in any way aggrandizing its own power. Loper-Bright, similarly, involved a system of power-sharing, in which courts carefully enforce the law but defer to agencies when the law is unclear.
The Supreme Court, in both cases, did exactly what the Latin nostrum forbids. It decided cases that are all about the scope of its own power, relative to the power of more democratically accountable officials. And the court decided it should have the power. All of it. Apparently, it is fine to be the judge in your own case, as long as you’re a judge.
So, what’s to be done? It is worth noting that the Republican Party is trying to have it both ways. When it asks for votes, it claims to represent the people over the elites. But when it appoints judges, it picks extremists set on ensuring that the government lacks the power to protect the public from the plutocrats.
Democrats shouldn’t let them get away with it. When Democratic members of Congress write legislation to rein in corporate wrongdoing, they should include language explicitly committing important decisions to agencies that will stand up to wealthy interests. And they should explicitly strip the courts of authority to overrule those agencies.
Republicans can support robust public protections, or they can oppose them. But they should not be able to claim they are fighting for the common man while letting their Supreme Court comfort the comfortable at the expense of the rest of us.
The Supreme Court’s terrible term was just one front in a MAGA assault on federal protections we all rely on. Worse, this assault is being waged under the cover of populist rhetoric that lets Republicans claim to be fighting special interests while their justices coddle them. This cannot be allowed to continue.
Samuel Simon previously served as the top Democratic staffer for the Senate Judiciary Subcommittee on agency action, federal rights and federal courts.