Of course Alito and Thomas would have allowed the government unlimited power. I am bit surprised to see Barret in the minority of this one.
Of course Alito and Thomas would have allowed the government unlimited power. I am bit surprised to see Barret in the minority of this one.
She's not as big on some of the broader interpretations of the 4th amendment that more civil liberty minded justices would lend credence to.
Particularly when it comes to tech, she usually goes along party lines but she's been surprisingly independent in other areas. When it comes to the 4th she does heavily prioritize the sanctity of the home and property rights.
I have a pet theory that it’s difficult for her to convince the far right wing of the court to let her write the majority opinion, and that’s part of what is fueling these uncharacteristic or “independent” moments.
I am pretty sure the Chief Justice chooses who writes the opinion when he (or, one day, she) is in the majority, and if that's right, then Roberts is the only one she would have to convince
When the Court rules to the center, I think Roberts likes to take it himself or let a liberal Justice write it so it looks like the court is balanced and unified or something.
Roberts has lost control of his court and is desperately trying to make it appear legitimate.
Genuinely curious:
What does it mean for a Chief Justice to be in control of their court, and of course, for them to be out of control?
The CJ decides who writes the opinion of the majority if in the majority, and the dissent if in the dissent. Its the job of the CJ to bring sides together in clear oppositions, and "horse trade" between bits and pieces of a decision so that its clear where a majority/minority lie.
The CJ's foremost political role is to ensure the judicial branch of government is seen as a politically legitimate institution which wields its power against the other branches in a constitutionally and poltiically legitimate way. If that slips, congress can start hiring/firing; and the executive, in the end, controls the guns -- they can be arrested.
To avoid being arrested or fired, the court has to keep all sides believing the rules they set are fair.
They have no power, in the end, but the power they are allowed to have. They govern by consent of the other branches, and that's trivial to take away
> They govern by consent of the other branches, and that's trivial to take away
That is entirely not at all what the us constitution says
Yes but the Constitution has to actually be followed for it to work. The Supreme Court has no military or police, if the President chooses to disobey them and the military and police follow the President's orders... there isn't much the Court can do about it. The system works when everyone executes the system faithfully, but that isn't meaningfully happening right now.
> The system works when everyone executes the system faithfully, but that isn't meaningfully happening
You are entirely right, we really need to prosecute presidents who do not follow SCOTUS rulings, like [1] and [2]
[1] https://www.wsj.com/opinion/joe-biden-student-debt-forgivene...
[2] https://www.cato.org/blog/obama-administration-ignores-supre...
So very specifically I've historically read Roberts as a fairly moderate jurist. He has a true romanticism about the neutrality of the court and that it shouldn't be a political body. (This is ridiculous, but anyways.) This has changed as the court has reached a 6/3 bias. When the court was a 5/4, Roberts could swing to the center and bring the majority position with him. But now the far right wing doesn't need his help: The conservative wing can do a 5/4 even with his dissent. So you see Roberts bucking the conservative trend much less, maybe not because he agrees with the court but knows he can't push the outcome to the center.
The other aspect I think in play here is that the current executive branch pretty much just ignores every court order it doesn't like, and the Court can't enforce any ruling it makes, because that's the executive branch's job. I think Roberts knows if the Court pulls against Trump very hard, it could lead to a showdown where Trump just... does what he wants anyways, which would destroy the perceived power of the Court. I think Roberts has tried to dodge a lot of law and a lot of rulings to avoid clear positions on the President which he would, in turn, ignore.
She doesn’t have to convince the “far right wing”. As long as CJ Roberts (not generally regarded as in any “wing”) is in the majority, he can assign the opinion to her.
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As per the current conservative trend of allowing authoritarianism through technicality, the majority of Alito's dissent is just that the Court shouldn't rule on this at all because it won't help the defendant's case much specifically.
With the exception of citizens vs united, I think most of the decisions of the "conservative" court have been along the lines that congress should do its job. I don't see how all this turns out well for normal people, but if it does, I think congress will have to be much stronger than it was within the federal government, and the federal government will have to be much weaker than it was. The structural problems are that the federal government doesn't want to be weaker, and congress people don't want to be stronger, because they have no term limits, so they don't want the power to rock the boat.
> I think most of the decisions of the "conservative" court have been along the lines that congress should do its job.
They have repeatedly reduced Congressional powers, including today, where they basically said Congress can't setup genuinely independent agencies (in Slaughter). Or when they kneecapped the VRA.
Some of them likely subscribe privately to https://en.wikipedia.org/wiki/Unitary_executive_theory.
> can't setup genuinely independent agencies
The US constitution lays out three AND ONLY three branches of government. The congress cannot create a fourth without an amendment. If they create an agency in the executive branch, by definition it reports to the head of the executive.
> The congress cannot create a fourth without an amendment.
Sure. So explain the results of Trump v. Cook, which involve exactly that.
The same justice, on the same day, issued one opinion that says Congress can't put limits on firing FTC chairs, and another that Congress can put limits on firing Fed board members.
Did you read the opinion? SCOTUS only said a process was broken by a step being missed. Trump can still fire Cook, just has to let Cook have a hearing about it. Nowhere that I see did they say Trump must at all consider what Cook says at said hearing or be bound by it in any way - only that she must be able to get a hearing. This does not seem to contradict his authority to fire her. Just like your job's HR will gladly give you a hearing about terminating you, even if their minds are all made up and nothing you say will change a thing.
Yes, I read both opinions, and am left wondering why "out of step with the statute Congress enacted and our nation’s tradition of central banking protected from political interference" applied to one and not the other.
Slaughter determined that agencies congress had ceded to the executive branch had control of the executive. It doesn't stop congress from directly exercising that power instead. It just says you can't play the fuck-fuck game where you pretend to create an agency in the executive branch but actually violate the constitution by trying to create a new branch.
> Slaughter determined that agencies congress had ceded to the executive branch had control of the executive.
The law Congress passed set rules requiring cause for a firing of an FTC commissioner.
It appears they now lack that power that they've had for almost a century.
Or Alito's new "history and tradition" test, invented out of whole cloth to take out abortion but now being applied to all sorts of things Congress does.
Statutes don't supersede the constitution and passing one doesn't create that power.
> Statutes don't supersede the constitution…
"We can make rules the President has to follow" does not supersede the Constitution.
It obviously depends on what rules they make. They can't make a rule creating a body of government employees that decide the substance of rules (not just implementation details), and then also has armed officers to enforce those rules, with its own judges to have hearings specific to those rules. Whether you heard ice or atf when you read that, they both fit. I like Gorsuch's opinion. He clearly calls out this danger of a half step of saying the president has complete control of the executive without also ruling the agencies themselves are unconstitutional. Realistically though instantly removing all those agencies would mean chaos. The court can't rule how to fix something, only that the rock brought before them is the wrong rock. The telling bit would be if someone then brings them a case where the removal of the ftc leadership has resulted in the agency not enforcing the laws as written. If they then side with the congress I would give them the benefit of my doubt. But I do also feel like their positions, while correct, are correct only out of the context of their environment.
> It obviously depends on what rules they make.
Today, the Court ruled that Congress can make the Federal Reserve an independent agency, but not the FTC. Same day, same justice!
What are the rules, exactly?
I see and acknowledge your point. But going back to
>Slaughter determined that agencies congress had ceded to the executive branch had control of the executive.
Congress ceded FTC to the executive branch. Congress put the Federal Reserve in some magical land, outside the executive branch, that doesn't even make sense.
My theory was that SCOTUS ruled the executive had this power over the agencies executive branch. Seems SCOTUS doesn't want to touch federal reserve question with a 10 foot pole. But going back to my original theory, it is a slightly different framing, since everyone involved freely agrees FTC is an executive agency while the federal reserve does not enjoy this agreement.
I do agree the federal reserve as independent makes no sense but I don't think it's the same question posed since you're not starting with the assumption the agency in question is an executive agency. SCOTUS seems to have ruled that an agency in the executive branch has executive control, while not going so far as to determine that the federal reserve is in the executive branch which is an entirely different question.
It's important to note SCOTUS is too chickenshit to rule on anything but in the most narrow way possible. If you ask them to rule on something with a prior established fact that it's in the executive branch you're likely going to get a very narrow ruling that doesn't try to create a unifying theory of everything.
> I do agree the federal reserve as independent makes no sense but I don't think it's the same question posed.
I think it's the core question; are there really rules at all?
The two rulings make that answer clear, I think.
Roberts in Cook says that firing was "out of step with the statute Congress enacted and our nation’s tradition of central banking protected from political interference". How is the FTC's setup in this regard not part of the same tradition? What part of the Constitution permits the Fed's existence outside of any of the branches? Why can Congress establish a central bank outside the Executive entirely, but not regulate the FTC?
In this case, it did, that's why SCOTUS ruled against it.
SCOTUS does not enjoy papal infallibility. They fuck up.
(Or act maliciously, as when Alito invented the new "history and tradition" test.)
Congress fucks up as well. There's as pretty strong argument that "independence" from the executive power vested in the POTUS and legislative branch puts that power in a place not authorized anywhere in the constitution, and for good reason, as the design of the constitution intends elected office to have direct control over powers of congress and the executive.
Yeah, that's why we have the veto power; as a check on their power.
SCOTUS has now given the executive retroactive uncheckable vetos. Yikes. "Those rules we agreed to, signed into law, and followed for the last 90 years? HAHA PSYCHE SUCKERS!"
Reminder: On the SAME DAY, the SAME JUSTICE issued an opinion that the President can't fire a Federal Reserve member, in Cook, saying it was "out of step with the statute Congress enacted and our nation’s tradition of central banking protected from political interference". You're asserting consistency that simply does not exist; the Court is starting with the desired ruling and working backwards from there.
I agree in general, but this is also why I say allowing authoritarianism through technicality. They know by punting to Congress, a body that is completely paralyzed, what the practical outcome of that ruling is.
I agree that motive is likely in at least one justice. But at the same time, if they really wanted to get back to original principles, they would have to take a wrecking ball to virtually every agency without being able to provide any substitute for the load bearing bits. I think these artificially narrow rulings are what some of the justices think is the middle ground to work in that direction without bringing the roof down. Thomas in particular has advocated for simply taking out the walls and trusting congress and the states will somehow fix everything and it isn't their problem. I think his opinions have occasionally been horribly flawed, but I see his vision and get what he is hoping for. I suspect something like that is the only way a representative democracy could recur in the US. Right now, states with strong geographic bents towards authoritarianism can use power of the federal executive to strengthen their position. If the federal executive had no agencies and was powerless the way Thomas suggests, those states wouldn't have much impact. But that entails acknowledging the entirety of the federal bureaucracy is unconstitutional and creating all sorts of power vacuums. Who knows how that would turn out? I increasingly think it couldn't be worse than the likely end state of a federal autocracy if we don't.