The Most Dangerous Branch

By Legal Correspondent Saori Shiroseki

The latest delayed revelation from a former Tiny Toadstool flunky this week reminded us again of how deeply we fell into tyranny in the previous administration.

This week, craven Trump enabler John Kelly finally admitted under oath that the criminal he served had tried to use the IRS to attack FBI officials who were conducting a lawful inquiry into his misconduct.  The news generated crickets among the Washington press corps, otherwise engaged in wondering who had dropped a bag of Bolivian marching powder in the West Wing lobby.  (It was most likely hard-tweaking Fox “News” rabble-rouser Pete Doocy, who needed to give his stupid empty baiting of Biden Administration briefers that certain “lift.”  If not him, then some other hack who needed an extra something for their 6:32 a.m. hit.)

She's got a North Lawn hit in 10 and needs that bump bad!

Siccing the IRS on one's political enemies or law enforcement officials doing their jobs is of course tyranny.  Just like extorting political dirt by withholding authorized weapons from a vital ally (that was impeachment #1).  Just like mobilizing friendly states and then an armed mob to overturn a fair and free election (that was impeachment #2).  Just like stealing classified documents and lying about it (that was indictment #2).

We've been so focused on the very real specter of authoritarian tyranny (about two to three points away in recent non-nobbled polls) that we've overlooked an equally grim prospect: what if the threat comes not from a corrupt Russian-owned stooge ruling from the patio of his crapcan club, but from the black-robed subverters of democracy doing business as the United States Supreme Court?

The question was starkly posed at the end of its current disastrous term, by decisions that were not only wrong on the facts and the law, but were issued by a bent court without authority to do so.

We're not talking about horrendously wrong decisions like taking away a woman's right to control her own body.  Those have to be resolved in the political process (more on that below).

We're talking about decisions that the Court was explicitly without the authority to make.   The distinction tends to get lost these days, but the Supreme Court and the lower courts do not in fact have the authority to decide whatever the f*** they want, the way Congress can.

They have an extremely limited grant of power contained in Article III, sections 1 and 2 of the Constitution, which says

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, ...In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

There's a lot to unpack here, but for today's purpose note that the judicial power is limited to “cases” and “controversies.”

Those limitations are important.  We know this because Brett Kavanaugh this term whipped this out:

Brett Kavanaugh has long had trouble with standing

Article III of the Constitution confines the federal judicial power to “Cases” and “Controversies.” Under Article III, a case or controversy can exist only if a plaintiff has standing to sue—a bedrock constitutional requirement that this Court has applied to all manner of important disputes

.... As this Court’s precedents amply demonstrate, Article III standing is “not merely a troublesome hurdle to be overcome if possible so as to reach the ‘merits’ of a lawsuit which a party desires to have adjudicated; it is a part of the basic charter promulgated by the Framers of the Constitution at Philadelphia in 1787.”... The principle of Article III standing is “built on a single basic idea—the idea of separation of powers.” ..... Standing doctrine helps safeguard the Judiciary’s proper—and properly limited—role in our constitutional system. By ensuring that a plaintiff has standing to sue, federal courts “prevent the judicial process from being used to usurp the powers of the political branches.”

U.S. v. Texas, 599 U. S. ____ (2023).

And if Brett “Look What Popped Up” Kavanaugh says it, it must be true.  Like when he said he never tried to rape a 16-year-old girl in a drunken frenzy.   In Texas, the Supreme Court properly said that a bent Republican state had no standing to keep the Executive Branch from exercising its plenary authority over immigration as it saw fit.

The next week, though, they forget all about their bedrock principle and usurped the powers of the political branches in at least two cases (and possibly three, if you count the Harvard case).  In fairness, they were busy packing their bags for their summer boondoggles in Alaska and Bali.

In Nebraska v. Biden, 599 U. S. ____ (2023), the Supreme Court said that despite explicit language to the contrary the Biden Administration could not waive student loan debt.  It found that a loan servicer chartered by the State of Missouri somehow conferred standing on the state itself, although the servicer neither suffered nor complained of any injury.

The three non-bent non-Republican Justices wrote in dissent: 

In every respect, the Court today exceeds its proper, limited role in our Nation’s governance....The plaintiffs in this case are six States that have no personal stake in the Secretary’s loan forgiveness plan. They are classic ideological plaintiffs: They think the plan a very bad idea, but they are no worse off because the Secretary differs. In giving those States a forum—in adjudicating their complaint— the Court forgets its proper role. The Court acts as though it is an arbiter of political and policy disputes, rather than of cases and controversies.

The majority didn't like forgiving student loan indebtedness so they killed it.  But that wasn't a judicial act.  It was an attempted arrogation of political power that they didn't have.

And they didn't stop there.  They went on to create a religion-based right to discriminate against a protected class seeking public accommodation in 303 Creative LLC v. Ennis, 599 U. S. ____ (2023), even though the plaintiff had not been asked to create a website for people she found abhorrent (a same-sex couple).  In fact she had suffered no injury at all, nor was there any present opportunity for her to do so.  The plaintiff had never sold a wedding website to anyone, gay or otherwise.  303 Creative, 599 U.S., slip op. at 31 n.11 (Sotomayor, J., dissenting).

We remember there used to be a guy who taught at Harvard named Larry Tribe who was thought to know something about Constitutional Law.  What'd he have to say?

the entire case was based on entirely hypothetical 'worries' that the web designer claimed to have about how the state's officers might come after her under the state anti-discrimination laws if a same-sex couple were to ask her to design a wedding site for them and if she were to refuse," Tribe said. "In my view, the disgraceful fact...is the very fact that the Supreme Court's majority was willing to render what amounted to an advisory opinion that it would never have done but for its eagerness to denigrate same-sex marriage and LGBTQ rights generally and that, under Article III, it had no business doing."

Got it.

By the way, the requirement that services be publicly offered is why the drivel about whether Steven Spielberg could be forced into directing a movie whose ideology he disagreed with fails the laugh test.  If, as, and when Spielberg opens up a Movies 'r Us on Rodeo Drive, the apologists for judicial discrimination against LGBTQ couples can try the argument again.

There's also a third case that's still churning in the lower courts concerning an effort by anti-abortion doctors to prohibit the use of medication abortion.  We've held forth on this already, but suffice it to say that the forced-birth ideologues pushing the case do not in fact have an injury other than the political desire to torment women seeking abortions.

What is to be done?

You might be expecting the usual lecture about voting for Biden and real Democrats (a group that does not include heroin-deranged anti-vaxxer Bobby Kennedy, Jr.).

But that covers all bent Supreme Court decisions, including in cases where they had unquestioned authority to make their decision (including alas the abortion ruling itself).

For the subset of lawless decisions issued by a court without authority to do so, we suggest an additional tool once used by an old country lawyer named Abraham Lincoln.  In 1861, with Maryland teetering on the brink of insurrection (which if successful would have left Washington surrounded and the Union cause lost), Lincoln ordered the arrest of among other subversives one John Merryman by the military authorities.

When Chief Justice Taney (who had decided four years earlier that Black people weren't people after all) ordered Merryman's release, “Lincoln refused to obey it....Whatever the respective merits of Taney's and Lincoln's position, Taney commanded no troops and could not enforce his opinion, while Lincoln did and could.” J. McPherson, Battle Cry of Freedom 288-89.

The Supreme Court has been wrong before

If a figure as devoted to the preservation of the nation and the Constitution as Abe Lincoln could justify ignoring Supreme Court decisions, maybe we should stop and think.

At least when the Court is plainly acting outside its Article III powers and simply imposing its political will, we'd argue that we have a responsibility to reject the tyranny of the judiciary.

Imagine what would happen.  In the case of student loans, Biden would simply state that no one has to pay $10,000 in loans.  Who would enforce nonpayment?  Who has a right to object?  The supposed website designer case is more difficult, because lower federal courts would like feel bound to enforce 303 Creative, but other states could argue that the precedent is worthless because it was issued without the power to do so.  

To the objection that ignoring or defying any Supreme Court decision threatens the rule of law, we would ask who is threatening the rule of law?  Is it those who insist that the Court obey the Article III limits on its power, or is it six bent Republicans ignoring the law to impose their political judgments on the rest of us?

A Court that feels empowered to act as an unelected and permanently Republican legislature seems like the greatest threat to law and order we face (outside the potential re-election of a Russian-owned corrupt disloyal sex criminal).

Many years ago, Prof. Alexander Bickel wrote a famous defense of the Supreme Court called The Least Dangerous Branch.  

What do we do when it becomes the most dangerous?