With the draft leak of the Dobbs v. Jackson decision in early May, which was ultimately handed down in late June, liberals and their allies in the mainstream media have been doubling down especially hard on the U.S. Supreme Court. As our friends at Twitchy recently pointed out, The New York Times on Monday published Adam Liptak's critical and rather ignorant headline, "An 'Imperial Supreme Court' Asserts Its Power, Alarming Scholars."
The Supreme Court’s rightward shift is only part of the story, legal scholars say. The court has also been accumulating vast power, insisting that it should have the last word — at the expense of every other part of the government. https://t.co/eEdbXZtuK6
— NYT Politics (@nytpolitics) December 19, 2022
The tweet, shared to the NYT Politics account, received far more attention than most other tweets, with nearly 500 replies. Of the 373 retweets, 261 of them were quoted retweets taking issue with the piece.
Liptak's headline comes from that of a law article in The Harvard Law Review by Mark A. Lemley, with Liptak thus being able to hide behind these "scholars." Liptak gets on board with such a point, though. As he begins his article:
WASHINGTON — 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. 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.
He refers to this supposedly as a "phenomenon" to introduce Lemley's article.
As much as liberals and the media had a collective freakout over Dobbs, the outrage goes further. As Liptak also writes:
The arguments this month over the role of state legislatures in setting rules for federal elections seemed to illustrate the point. The questioning suggested that the court was not prepared to adopt a novel legal theory that would upset the ordinary checks and balances at the state level in election litigation.
Rather, the justices seemed ready to elevate their own role in the process, giving themselves the right to do something ordinarily forbidden: second-guess state courts’ interpretations of state law.
...
A second study, to be published in Presidential Studies Quarterly, concentrated on cases involving the executive branch and backed up Professor Lemley’s observations with data. Taking account of 3,660 decisions since 1937, the study found that the court led since 2005 by Chief Justice John G. Roberts Jr. has been “uniquely willing to check executive authority.”
This trend was even more pronounced in cases discussed in law school casebooks and featured on the front page of this newspaper. The executive branch in the Roberts court era won just 35 percent of the time in those cases, a rate more than 20 percentage points lower than the historical average.
The study’s authors, Rebecca L. Brown and Lee Epstein, both of the University of Southern California, wrote that “there is little indication that the Roberts court’s willingness to rule against the president bears any reliable relation to preserving the balance among the branches or the workings and accountability of the democratic process.”
“Instead,” they wrote, “there are increasingly frequent indications that the court is establishing a position of judicial supremacy over the president and Congress.”
Professor Brown added in an interview that the nature of the court’s reasoning has shifted.
“When the court used to rule in favor of the president, they would do so with a sort of humility,” she said. “They would say: ‘It’s not up to us to decide this. We will defer to the president. He wins.’ Now the court says, ‘The president wins because we think he’s right.’”
Nor does the Supreme Court seem to trust lower federal courts. It has, for instance, made a habit of hearing cases before federal appeals courts have ruled on them, using a procedure called “certiorari before judgment.” It used to be reserved for exceptional cases like President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor or President Harry S. Truman’s seizure of the steel industry.
...
Yet another study, from Tejas Narechania, a law professor at the University of California, Berkeley, examined the cases selected by the justices for full-blown review on the merits.
“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,” Professor Narechania found in the study, which will be published in the St. Louis University Law Journal and built on an earlier one in the Columbia Law Review.
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Other experts have another take, though. Curt Levey, a constitutional law attorney and the president of the Committee for Justice, pointed out the outrage when it comes to the shoe being on the other foot.
"There’s nothing like a series of conservative victories at the Supreme Court to make progressives change their jurisprudential tune. From the time of the New Deal until very recently, the Left celebrated a Court with virtually unlimited power, including the power to create new rights, ignore rights explicitly enumerated in the Constitution, and eviscerate constitutional limits on federal authority. It is only in the last few years, as conservatives decisions at the High Court have begun to outnumber liberal ones, that Adam Liptak and his liberal colleagues have begun to worry that the Court is 'accumulating power at the expense of every other part of the government,'" he offered.
It is "in defiance of any logic," Levey said, that "their new realization comes at the very time that the Justices are stepping back from the anything-goes days of Roe v. Wade and living constitutionalism and showing newfound deference to our elected representatives – both evidenced in this year’s Dobbs decision."
As it would turn out, the Court does have the final authority on constitutional matters. The jurisdiction has been there, as many replies pointed out, highlighting the 1803 case of Marbury v. Madison, an early landmark case if there ever was one. It established the power of judicial review, thus allowing courts to overturn decisions they found to be unconstitutional.
There's also no mention in Liptak's articles of how it's perhaps the executive and legislative branches that are behaving in an increasing manner that has the Court stepping in as a check on their power.
To add insult to injury Liptak actually does mention Marbury v. Madison, as an aside, to quote Chief Justice John Roberts:
In September, in remarks at a judicial conference, Chief Justice Roberts insisted on the court’s primacy.
“You don’t want the political branches telling you what the law is,” he said, echoing Chief Justice John Marshall’s famous statement in Marbury v. Madison, the foundational 1803 decision: “It is emphatically the province and duty of the judicial branch to say what the law is.”
The statement is popular with the current court. “Over half of the total number of majority or concurring opinions in Supreme Court history to have quoted this language from Marbury,” Professors Brown and Epstein wrote, “have been penned by the Roberts court.”
Yes, how dare the Court remind people of their authority.
At the end of the day, though, Levey offered that perhaps there is a point to the Court having too much power.
"For nearly a century, conservatives were the ones calling for limits on judicial power. While it’s easy to dismiss the Left’s conversion as crass opportunism, perhaps conservatives would be wise to instead embrace it. As I have noted, this may be the rare time that structural reforms curtailing the Supreme Court’s authority could garner the bipartisan support needed for enactment. Sure, conservatives are happy with the current Court, but they would be wise to remember that one or more of the conservative Justices could evolve or leave the bench at any time," Levey added, pointing to his op-ed in August of last year for The Federalist.
If that's the case, perhaps such liberal advocates ought to be presenting a case worth taking more seriously.
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