Putting aside whether you believe the Supreme Court of the United States is a bunch of Trump-loving partisan hacks or a more conservative court, but still one that prizes legal principle and integrity despite Justice Thomas’ RV, a secondary problem arises out of its decision staying the universal injunction in Trump v. CASA.
Bear in mind that the Court takes on a relative handful of cases, and even then tends to go no further than absolutely necessary to address the issue before the Court. What this means is that thousands of cases go unreviewed by the Supreme Court, and tens of thousand of issues go unresolved, left to some other day in the future that may never come. The latter is called judicial humility. The former is called laziness.
Even worse, the Supreme Court does not reach constitutional questions if a matter can be decided on another basis. While that may be a virtue in general, it means that a substantial constitutional question remains unresolved when a case can be decided on more idiosyncratic grounds, peculiar to the individual case and unhelpful to the broader questions that may have a significant impact on the law’s application to society at large.
Law prof Kate Shaw raises an interesting problem with this in light of the magnitude of Trump’s rule by Executive Order, and one that may well follow with future presidents who ignore legal norms to test the scope of authority. Remember, Trump won’t be president forever, and a president with whom you disagree may one day be in the position to use executive fiat to do things that make you sad.
But the power transfer that will result from this opinion is not only from the judiciary to the president, but also within the judiciary. That’s because the Supreme Court’s conservative majority also suggested that the Supreme Court, alone among the federal courts, can and will continue to provide uniform national answers to pressing legal questions, on both a preliminary basis and a final basis.
The court already commands outsize power within our constitutional order; this decision demonstrates a new degree of imperiousness, seeming to co-sign the Trump administration’s contempt for the lower courts while announcing that its own edicts will continue to command obedience and respect.
If, as the CASA case suggests, only the Supreme Court’s decisions govern the nation, such that the rulings of inferior courts are at best limited in scope by their jurisdiction or the named parties, this will require the Supreme Court to either take on all cases involving constitutional questions, and then rule on the constitutionality even if the case can be decided on a lesser basis, or unconstitutional actions will go undecided for large swathes of the nation.
Imagine a law held unconstitutional in some districts or circuits, but not others, that either hasn’t reached SCOTUS or goes insufficiently decided such that there remains serious questions that impact on millions of lives? What’s unconstitutional in the Ninth is totally fine in the Fifth. Say cops can engage in the seizure of “assault rifles” in California, but it was quite unconstitutional in Iowa. And the Supreme Court, well, they just haven’t gotten around to it yet, even though a year or more has elapsed.
The decision by the court’s conservative majority offers yet more evidence for the transformation of the Supreme Court. Though often cloaked in a language of neutrality and humility, the conservative majority’s actions — in the critical discretionary choices these justices have made about what cases to take, when to intervene and what interpretive methods to use — speak more clearly than its rhetoric about the court’s conception of its own role, which is neither neutral nor humble.
There is no right to appeal to the Supreme Court. Its docket is discretionary. Even if they up their game and take on 100 cases a year rather than 50, that leaves a lot of issues on the table that would have been addressed through the decisions and orders of lower courts in the past. Are the Supremes up to the task? Are we willing to wait, and wait, and wait, until the Supremes get around to it, if ever?
What happens to all those people who are the subjects of unconstitutional government actions in the meantime, some of whom will be deported, or have their guns seized, or have their funds cut, or their law firms shuttered, or have no one to pick their strawberries? If only the Supreme Court has the authority to enjoin a law as an unconstitutional excess of power, there will be a great many people and issues that remain undecided and cause irreparable harm in the process. When the issue affects you or yours, is it going to be as acceptable as when it only impacts your hated “illegals”?
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Twofer Tuesday.
Nope. They seem to be dead set on neglecting the fact that they are a branch of government unto themselves, one without precedent at its creation (except for some states, I think). It’s the withering and shrinking from responsibility that I most feared. I hope they can forgive my impatience at their dithering. I’m watching our constitutional form of government collapse, and it’s quite distressing.
Of course not. I suspect the future will be handled almost exclusively on the shadow docket, with little to no rationale for their decisions, and maybe another half dozen fully decided cases a year. Work, work, work.
Well,maybe the Congress could step up and say/do something to deal with all this ambiguity in the laws. Or maybe a few of the states could be brave enough to add their voices to the call forca constitutional convention to reinvent us out of this conundrum. Or maybe we could have an election to change the composition of the representatives to encourage them to do something.
To your question as to whether the Supreme Court should accept more cases to bring finality to outstanding conflicts of law, I would advise you to be careful with your wishes. Wishing for more opinions sounds like grasping the monkey’s paw, especially with the Court’s current composition.
I wouldn’t deny that the Supreme Court–with its small army of clerks–have gotten downright lazy over the last few decades, but I personally see that as a feature, not a bug. I would prefer not to answer to frequent political diktats from on high. Think of C.S. Lewis’ observation that it is better to be ruled by a robber baron than someone purporting to act on your moral behalf.
However, having had my one petition for certiorari denied by the same Court, that instance was both wrong and a tragedy. They absolutely should have heard my appeal and not all of those other, worthless appeals.
IANAL but I still have opinions about the law. The law is a HUMAN INSTITUTION and is managed by HUMANS. Human nature is flawed and so is every system of LAW including those of the nations of the so called liberal West. Sometimes law gets it right and sometimes it gets it wrong because it is contaminated by prejudice contained in the collection of wide spread ideas that humans refer to as “common sense” but which can just as justifiably be referred to as “common nonsense”.
If artificial intelligence exists on Earth it not those systems to which we refer as “AI” since “AS” for Artificial Stupidity is just as good a term. AI’s hallucinate factoids and those who rely to much on them, journalists, lawyers, scientists and those who use them to update Wikipedia have been humiliated. Beware their increased use. The factoids spewed can be very convincing until a human with the right special knowledge debunks them. I note that Google now is giving uncannily good hit lists and accompanying AI overviews. When believing hold a long spoon.
Eventually true artificial intelligence will arrive after who knows how many years 5, 10, 20 ….. and after much more trial and error than expected. When it does arrive applying it to review and offer opinions on the record of all legal cases from Roman Empire times onward would be a good idea.
On the US Supreme Court.
The shift from 5:4 balance right to left to 6:3 has changed the behavior of some of the right wing justices in that they are now more reluctant to be seen in the defeated minority of 4.
None of this or the other makes any sense at all. I don’t think you’re altogether sane. Be well and have a seat in the corner next time, please.
“Probably the worst thing that has happened in America in my time is the decay of confidence in the courts. No one can be sure any more that in a given case they will uphold the plainest mandate of the Constitution. On the contrary, everyone begins to be more or less convinced in advance that they won’t. Judges are chosen not because they know the Constitution and are in favor of it, but precisely because they appear to be against it.” – H.L. Mencken
I wonder, given that Mencken died before I was born and our Republic has survived, if we should take some comfort from the fact that this isn’t the first time the court has seemed to be in an especially precarious position. Perhaps we’ll survive this as well.
I’d have to look further into the context to form a complete opinion, but at face value it feels that Mencken is out of his depth. Judges do their damnedest to uphold the law and are as a rule in favor of the Constitution and the rule of law. While history does indeed teach, every case must be judged on its on merits. However, the quote is somewhat prescient given Trump’s requirement of loyalty above all else from his appointees. Can you go further afield than Mencken and Orwell and Heinlein is the real question.
This ruling promotes and accelerates the country’s fragmentation into a geographic patchwork. The folks with the power to do something about that can’t – or won’t – see the forest for the trees.