The alarmist Supreme Court agenda

book review

Looking back at Ian Millhiser, Agenda: How the Republican Supreme Court is reshaping the United States (“Colombia 2021 Global Report”)

in Agenda: How the Republican Supreme Court is reshaping the United StatesVox Senior Correspondent Ian Millhiser gave a fascinating, accessible and well-informed statement about progressive anxiety about what the Supreme Court’s newly strengthened conservative majority might do. However, this book is unlikely to change the minds of many people because it betrays the mistakes it sued the court: it proposes a vision of a correct decision based more on partisan policy preferences than on neutral legal standards.

(“Colombia 2021 Global Report”)

Millhiser focused on the current power of the Supreme Court and outlined the historical evolution of this point, thus starting this book. Millhiser pointed out that in the so-called Lochner During the Gilded Age and the beginning of the 20th century, the Supreme Court interpreted the Constitution as prohibiting certain progressive economic and social legislation. However, Millheiser wrote, Lochnerism “won the President Franklin Delano Roosevelt (Franklin Delano Roosevelt) competition.” Then, in the famous 1938 Caroline Products Decide The Supreme Court “implements a strong presumption of democracy-in almost all cases, democratically elected representatives of the people should determine the country’s policies, not unelected judges.”

Millhiser suggested that things go downhill from there.Although conservatives once accepted Caroline Products Millhiser advocated the principle of judicial restraint, and now they have given up judicial restraint after obtaining judicial control. “This Caroline Products Pro-democracy solutions are now broken. “He wrote.

Millhiser illustrates this argument through four whirlwinds: the right to vote, administrative law, the right to religious belief and the right to sue. He believes that in each case, the court is moving in a direction that is conducive to the Republican agenda and election prospects, and threatened to move further in a conservative direction.

Only 113 pages, Agenda Deliberately and laudably short, it may not be wise to attribute it to nuance. However, many of its claims make me feel hyperbolic and lack context.

First, the court did accept judicial restrictions. Caroline ProductsAnd it is true that some conservatives in the courts today seem to be more firmly committed to judicial restrictions than previously claimed. But a lot of things happened between 1938 and 2021 to make the Supreme Court the powerful institution it is today, and in the process, the courts (right or wrong) made many controversial liberal decisions that override democracy Choose above. Regarding abortion, cruel and unusual punishments, self-prosecution, settlement clauses and same-sex marriage decisions are obvious examples. At this point, the progressivists’ new discovery of judicial restraint seems to be as contextual as the similar professions of the conservatives in the past.

Moreover, despite being so powerful, the Supreme Court is not actually the “source of American decision-making” as Mill Heather said, nor does it accurately point out that the court is “leading”.[t]He has accounted for a large share of the legal changes that have occurred in the past decade. “First, the ten-year period of the statement is artificial: it ignores the outstanding performance of Congress in the first two years of President Barack Obama’s tenure 10 years ago, when Congress passed the Affordable Care Act ( Affordable Care Act) and the “Dodd-Frank Act” (Dodd-Frank) “Wall Street Reform and Consumer Protection Act.” In addition, even in the past ten years, Congress has enacted many important laws, including tax reform and The huge spending bill for the past year and a half. Finally, although it is true, as Millhiser said, the political polarization may weaken Congress compared to other departments, but the executive branch, not the courts, is the result of this change. The main beneficiary.

In summary, today’s Supreme Court is a very powerful institution. In my opinion, this institution is too powerful. The appointment process has become a party to the Supreme Court. Unprecedented degree. I also agree with Millhiser’s view that the court took some important wrong measures. (such as me Arguing beforehand The court will be wrong in its ruling Shelby County v. Holder; I criticized Some aspects The administrative law of the court; and the obstacles of private litigation and class action that Millhiser emphasized deserve more public attention. )

Even so, I still doubt whether the court will amend the law as drastically as Millhiser feared. Millhiser is concerned, for example, by weakening federal voting rights laws and upholding state-level election regulations,”[t]The 6-3 Republican majority vote in the Supreme Court may pose an existential threat to the Democratic national ambitions, and more importantly, a threat to the liberal democracy of the United States. “

Time will tell everything. The recent events have aroused a certain amount of vigilance, but I suspect that the Democratic Party’s future election success will depend more on its policy stance and willingness to run for candidates, rather than anything done by the Supreme Court. thing. In addition, I suspect that in most areas, the courts will pursue incremental changes rather than drastic changes. Courts have generally done this throughout history, and recent threats of increasing court seats or taking other aggressive actions seem likely to encourage restraint.

To this end, the court has recently issued many surprising judgments, covering the following areas: abortion with Transgender rights to Immigration, Criminal proceedings, with Commonwealth Laws of India. Indeed, these decisions predated the 2020 election and the death of Justice Ruth Bud Ginsburg. But they showed that the conservative group of the court is difficult to unify on every issue, and that, with the exception of Chief Judge John Roberts, some judges may feel cautious and restrained as he did. This is the time for a decisive vote. Dramatic ruling.

In my opinion, in any case, it is much more important to determine whether the court’s ruling is partisan rather than observing whether the result of the ruling is in line with partisan preference; it requires some theory about what ruling is correct on the merits. Here, at least in some respects, the position of the liberals is only a mirror image of the conservatives. For example, Millhiser believes that Refuse Respect the institution’s views on its own laws and regulations in the judiciary put off The Trump administration’s reasons for adding citizenship to the census. However, to the extent that these conclusions are inconsistent, so are the opposite views of liberals.

In principle, pro-democratic constitutionalism (a theory that advocates judicial restraint and political settlement of policy conflicts) can provide a way out of this restraint.However, in order to provide the appropriate general direction, this approach must be adopted across the board, and I am not sure which approach should be adopted to solve all problems Agenda address. Now that someone has to establish election procedures and delimit zoning, would it be more democratic to do so in the judiciary or to be primarily responsible for the elected representatives of the state and the federal? Is it more democratic to allow a wide range of delegations to participate in administrative agencies or restrict them? Should the balance between public order and religious freedom be maintained in the political process, or should there be greater respect for major religions in a country where religious adherence has declined? The answers to these questions are not obvious to me.

From pandemic prevention measures to school curricula and even our society, the bipartisanship seems to increasingly constitute a variety of debates Choice of pillow. The Constitution is no exception. Indeed, this is an arena, and this dynamic is particularly destructive.In my opinion, the correct countermeasure is not to assume purity on the one hand and evil on the other, but to agree with what I said “Symmetry” understanding: The court should focus on formulating clear road rules so that they can be applied equally in different issues and contexts. If Millhiser’s concerns about the court indicate that this approach is necessary, so should the equally partisan vision he offers.

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