Justices charge Supreme Court acts as legislature; uses 'shadow docket'

 

Gordon L. Weil

The Supreme Court is acting as a legislature – again. 

Two justices on the Court, a conservative and a liberal, just made that charge in a major case.

Here’s the story of how two presidents set policy and the Supreme Court overruled them.

When he was president, Donald Trump sought to protect the American public from excessive exposure to the Covid-19 pandemic that was sweeping the world.  His administration adopted a policy under Title 42 of the federal laws that would ban almost all immigration into the U.S., keeping out people carrying the virus.

This policy, based on the obvious need to protect public health from contagious disease, aligned with his well-known desire to prevent unauthorized immigrants from entering the country.   It had the desired effect and was favored by the governors of states supporting Trump’s effort to bar the illegal immigrants.

When he took office, President Joe Biden retained Trump’s policy because of continuing concern about Covid-19.  Ultimately, he concluded that, while the virus still existed, it was no longer the same threat to public health.  He ordered the end of the Title 42 immigration ban.

Governors of states receiving illegal immigrants opposed his administration’s move, fearing a massive immigrant influx.  Many refugees and asylum seekers were assembled at the Mexican border awaiting Biden’s action.  The states went to federal court to halt his move.

A district court faced the immediate decision about whether the governors of the complaining states had the right, called “standing,” to bring the case.  The Supreme Court has determined parties to a case must be directly affected.  Would the states be harmed by an action under a law dealing with public health rather than immigration?

Before the case could proceed further, the Supreme Court was asked to decide if the states could raise the issue.  The ban was due to be lifted on December 21, 2022, but just two days before, the Court halted it while it decided that question alone, though not the full case.

The Court ruled it would hear testimony in February but could make its decision as late as June. If it rules in favor of the states, a lower court would then decide on the merits of the case itself.   If it decides against the states, Biden can proceed.  All that could take months.  Meanwhile, the ban, probably no longer needed for health reasons, would remain in place.

In short, the Court overruled the president’s legal determination of the health situation.  And the effect of its decision could set national immigration policy for many months, if not years.

Justice Neil Gorsuch, a Trump appointee to the Court, objected, believing the matter was a policy dispute.   Joined by Justice Katanji Brown Jackson, Biden’s only appointee, he acknowledged concerns about immigration.

“But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency,” he wrote.  “We are a court of law, not policymakers of last resort.”

The Court had other options.  It could have quickly decided on standing.  Or it could have allowed the president’s decision to be applied, while moving to a prompt ruling. 

Gorsuch and Jackson believed the majority was influenced by immigration policy concerns.  But they could not know why the majority had made such an important decision, because five justices had said nothing.  Instead they simply ordered that Biden could not end the ban.

Two other justices – Elena Kagan and Sonya Sotomajor – also opposed the majority.  They gave no reasons, possibly because they had already expressed themselves strongly about the kind of ruling used by the majority.  It’s called the “shadow docket” – rulings made to look simply procedural, but which really decide major cases.

In an earlier case, Justice Kagan had written that the Court “barely bothers to explain its conclusion.” She continued, “The majority’s decision is emblematic of too much of this Court’s shadow-docket decision-making – which every day becomes more unreasoned, inconsistent, and impossible to defend.” 

In that case, Justice Sotomayor simply said, “The Court’s order is stunning.”  The Court did not suspend a state law, while it considered whether the law was constitutional, but allowed it to go into effect.   The immigration case used the reverse approach, though neither time did the Court provide legal justification.

Chief Justice John Roberts speaks of preserving respect for the Supreme Court and asserts that it does not play politics.  Yet he was in the majority in both cases, going along with “shadow” opinions in pending cases that allowed an anti-abortion law passed in a Republican state, but blocked the decision of a Democratic president.

“Equal Justice Under Law” is carved on the Supreme Court building.  Is this justice “equal?”  Where’s the “law?”

Trump and Russia decline, economy transforms: That Was the Year That Was

Gordon L. Weil

Some years are sure to end up in historical memory. 2022 is one of them.

Russia launched a land war in Europe long after people thought that the Second World War had ended such conflicts.

The economy underwent basic changes as people began to deal with the true costs of what they need and want.

And the dominance of one of America’s most disruptive political figures began to disintegrate.

Russia’s invasion of Ukraine came as a big surprise. With the end of the Soviet Union, Russia ceased to be seen as a threat to the rest of Europe. It was invited to join the club of the world’s major economies. But participation did not align with its desire to remain one of the world’s two superpowers, and it could not remain in the club.

Russia, whose main assets are nuclear weapons and a large population, sought to recover lost Soviet territory, capped by its Ukraine invasion. It apparently expected that its formidable army and lack of interest in the West would make a takeover easy.

Heroically defending their land, the Ukrainians were taught both Russia and the world a lesson. They revealed Russia’s military as a sham. Whatever the outcome of the war, Russia has little chance of recovering its superpower role. As Russia’s weakness became obvious, China emerged as the leading authoritarian power and the chief challenger to the U.S. and its allies.

American consumers are bargain hunters, and China enhanced its power by selling goods at low prices, collecting dollars to finance its world expansion. But the spread of Covid interrupted trade flows from China, and U.S. leaders became increasingly aware that American customers were financing the quest for power of their country’s chief rival.

Parallel to this development, the unmanaged influx of immigrants had become a major concern in the U.S. and Europe. Though millions sought unauthorized entry, the lost contribution of immigrants as workers and consumers became more obvious. Workers demanded higher pay, shortages developed and prices climbed.

Some may still believe that the world economy is merely passing through a difficult and stressful period, but that it will soon return to normal. Inflation will slow, but prices won’t retreat and business will not pick up where it left off. Such thinking misses some clear reasons that a new economy has been emerging in 2022.

Pay increases will not be rolled back. Many people have been seriously underpaid and they have implicitly joined an invisible national labor union. They withhold their labor unless they get better pay and working conditions.

Countries are getting more serious about climate change. Turning environmental damage around will make goods and services more expensive. U.S. production costs will initially be higher than were charges on imports from China, which despoils the environment while exploiting its workers.

Paying increased labor costs, less dependence on cheap Chinese imports, and environmental improvement action will keep prices from dropping back. People may have enough money to meet their needs but not to satisfy all of their wishes. This new economy could last for decades.

Donald Trump probably changed the U.S. and America’s world standing in a brief period more than all but a few previous presidents. (He would say more than any of them.) He has his MAGA supporters. Like a stopped clock that is right twice a day, he has some accomplishments. But they are byproducts of a destructive ego, and he has proved dangerous to his country.

His greatest faults have been giving comfort to bigotry and placing his own ambition and interests above the values and norms of the country he was elected to lead. He chillingly proposed the “termination” of the Constitution so he could seize the presidency he knew he had not won. He encouraged irresponsible officials to dismantle essential constitutional practices.

His combination of ignorance and arrogance came up short. In Maine, former Republican Gov. Paul LePage, an ardent ally of Trump, chose to challenge Janet Mills, the Democratic incumbent. His record, irresponsibly flaunting the will of the people, would be pitted against her record as a rightward-leaning, moderate.

Her victory was the hard evidence of Trump’s decline. Mills had a mainly positive, though not flawless, record to run on, but LePage was stuck with his Trump-like legacy. If he tried to distance himself from his previous positions, it only looked like opportunism, which did not help.

This year, Trump was losing in the judicial system and key Trumpers like LePage were losing at the ballot box. Mills showed that voters would support steady progress over chaos and controversy. In Maine and elsewhere, a brief political era was ending.

Valiant Ukraine and failing Russia, the emergence of a new economy and the descent of Trump combined to make 2022 an historic year.

Popular vote for president remains at risk

Gordon L. Weil

What was Mike Pence supposed to do?

Attention is again focused on the January 6, 2001, insurrection at the Capitol when the Vice President didn’t do what then President Trump wanted and stop counting the electoral votes that would make Joe Biden president.

Just specific action he should take was never clear.   At least one Trump advisor suggested the Constitution gave the Vice President the power simply to declare the winner, if he found enough defective votes, thus denying Biden the election.  That was a bit of a reach, even for the person who proposed it.

If that went too far, some Republicans said that Pence should kick the matter back to the contested states, particularly to state legislatures. That theory rested on a constitutional provision that gives state legislatures the power to direct how presidential electors are chosen.  That could mean the legislature would pick electors favorable to Trump despite a state’s popular vote for Biden.

Pence followed none of this dubious advice.  But the belief that the Constitution gave state legislatures total, independent power to determine the outcome of federal elections has survived.  It is now squarely before the U.S. Supreme Court.

The question survives, because it is part of the GOP playbook of voter suppression measures aimed at Democrats.  The favored plays include making it difficult to register and vote, limiting voting periods and easily accessible polling places, restricting mail-in ballots and segregating Democrats into as few districts as possible.

Drawing district lines to segregate voters by race is illegal.  But the Supreme Court will not rule against possible racial gerrymandering unless it can be shown that no other significant factor could have been the basis for the district outline.  That’s a tough case to prove.  Some southern states have managed to create a single congressional district to sweep in the state’s Black and presumably Democratic voters.

The Court will not rule at all on political gerrymandering, when a state draws congressional or state legislative district lines to pack as many members of one party into as few districts as possible.  The Court will leave that issue to the individual states as allowed by the Constitution.  That raises the question of who within a state has the power to decide.

The Constitution states that the “Manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof....”   Can the state legislature gerrymander as it wishes, unchecked by any other part of the government?

If so, a legislature could ignore the popular vote as well as the governor and the state supreme court.  Because its powers are mentioned in the Constitution, the legislature would consider itself a federal agency, lifted out of state government when it creates congressional districts.  That’s what North Carolina Republicans claim in a case now before the Supreme Court.

State legislatures cannot normally act outside of the limits of state constitutions.  But a state supreme court decision in line with a state ban on political gerrymandering might raise a conflict with the federal Constitution. In that situation, the U.S. Supreme Court could overrule the state court.

Article I of the Constitution makes the president part of the legislative process, because Congress can make decisions only with the president’s consent or by overriding a president’s veto.  State governors have a similar role. Despite the claims of the North Carolina Republicans, the Supreme Court long ago decided that governors could veto legislative districting.

The Court has already ruled that the people of Arizona, who mandated by referendum that a neutral districting commission should replace the legislature, exercised a legislative function allowed by the Framers. 

For state legislatures to gain absolute power, the Court would have to reverse two previous rulings and strip state courts of their own constitutional jurisdiction over elections to federal office.

The Court’s decision might reveal how partisan it has become.  If it rules for the Republicans, as some justices seem inclined to do, a state legislature under one party’s control at the moment the Court decides could always draw districts to keep that party dominant and in power. It would take a massive change in the electorate itself to redraw the lines.

If state legislatures are given total control over the design of congressional and legislative districts, they could similarly have unchecked power over who may cast electoral votes for president.  The popular vote could be ignored, especially if the losing candidate claimed there had been voter fraud.

Such a Court ruling might easily lead to the warped legal view that state legislators, not the people, can decide who wins federal elections.  It could also harm the Court’s already suffering reputation.

A Supreme Court decision for the North Carolina Republicans could end up requiring a Pence successor someday to do exactly what he refused to do.