'Judicial supremacy': How the Supreme Court usurped the other two branches of government

19 December 2022

In 2023, there will be a lot of gridlock in Washington, D.C., with Republicans having a small majority in the U.S. House of Representatives while Democrats will still control the White House and the U.S. Senate. Democrats performed much better than expected in the 2022 midterms, losing the House but slightly increasing their narrow majority in the Senate and winning key gubernatorial races in Pennsylvania, Michigan, Arizona and other swing states.

But even if the United States had taken a hard-left turn in 2020 and 2022 — even if Sen. Bernie Sanders of Vermont were president and Democrats had large majorities in both branches of Congress going in 2023 — the country would still have its most radical-right Supreme Court in generations. And the High Court won’t be moving to the center, let alone the left, anyone soon. It’s entirely possible that all three of the Gen-X justices President Donald Trump appointed (Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch) will still be on the Court 30 years from now.

The Court’s far-right turn is the focus of articles published by the New York Times and the conservative website The Bulwark on December 19. In the Times piece, journalist Adam Liptak emphasizes that today’s Supreme Court wields more power than other branches of the federal government.

“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,” Liptak explains. “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.”

Liptak notes what Stanford University law professor Mark A. Lemley had to say about the High Court in an article published by the Harvard Law Review on November 20.

Lemley wrote, “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. Rather, it is withdrawing power from all of them at once…. It is a Court that 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.”

Lemley’s article was headlined “The Imperial Supreme Court” — a characterization that Liptak doesn’t disagree with. And Liptak points out that according to Rebecca L. Brown and Lee Epstein of the University of Southern California (USC), the High Court “is establishing a position of judicial supremacy over the president and Congress.”

Liptak also quotes University of California, Berkeley law professor Tejas N. Narechania, who wrote, “The Roberts Court, more than any other Court in history, uses its docket-setting discretion to select cases that allow it to revisit and overrule precedent.”

In an article she wrote for The Bulwark, University of Baltimore law professor Kimberly Wehle stresses that the Roberts Court has been showing a total disregard for precedent. Discussing the case Merrill v. Milligan, Wehle points out that how the Court ruled in the past isn’t a major concern for this edition of the Court.

“After the Dobbs ruling overturning Roe v. Wade last term,” Wehle writes, “it’s clear that the Court’s majority is not shy about overturning precedent, however entrenched it may be…. At issue in Merrill, which was argued on October 4, is whether Alabama’s newly redrawn congressional map illegally discriminates against Black voters under the Voting Rights Act (VRA). A three-judge lower-court panel, including two Trump appointees, agreed with the plaintiffs, deeming the Alabama map illegal and mandating the creation of a new one. If the Supreme Court sides with Alabama, it would mean another reversal of established precedent interpreting Section 2 of the VRA in a 1986 case called Thornburg v. Gingles. Even worse, it would be another serious gut-punch to Congress’ ability to pass laws remedying systemic discrimination, this time in voting.”

Another current Supreme Court case that worries Wehle is Moore v. Harper, which deals with partisan gerrymandering in North Carolina and a far-right legal idea known as the independent state legislature (ISL) theory. The ISL, in its most severe form, argues that only state legislatures have a right govern elections at the state level — not governors, not state supreme courts, not judges.

“The implications of Moore are even graver than those in Milligan,” Wehle warns. “The legislators are arguing that under the U.S. Constitution, only state legislatures or Congress can decide the rules governing federal elections — state courts and state constitutions are meaningless. This independent state legislature theory was repeatedly raised with no success by Trump and his supporters seeking to overturn the election in 2020.”

Wehle continues, “But what was unthinkable then — a ruling that takes elections away from voters by mandating as a matter of constitutional law that state legislatures have unfettered power to ultimately decide them — is very real now…. If the independent state legislature theory nonetheless carries the day, it would mean that a state legislature could violate the very state constitution that created it. Voters would, once again, be the losers at the Supreme Court — despite multiple laws designed to protect them.”

Wehle wraps up her article by arguing that today’s Supreme Court is more radical than conservative.

“Alas, the conservative justices on this Court have already shown their hand,” Wehle writes. “They don’t care about precedent, let alone intellectual integrity. As a result, Americans may be in for a rude awakening. Indeed, perhaps it’s time to retire the label ‘conservative’ when referring to the majority of this Court. Each term gives further evidence of its decidedly unconstrained unconservatism. And the future of our precious Constitution is in their hands.”

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