SCOTUS Watch: More Opinions with Some Tyranny

Stephen Breyer's Book

Various liberals were not impressed by Stephen Breyer's latest book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism. 

The book's purpose was to explain his approach to serving as a justice and judge and interpreting the law. His guest appearance on Stephen Colbert (blah) underlines he is writing for a broad audience. He has written some books for specialists. He intended a broader audience here. 

If you want a readable (if still somewhat academic) book on his constitutional vision, you should read Active Liberty. It is shorter and covers the important bases. He had a longer one, which was still approachable. His book on international legal disputes also was not bad though some might find it too long.

This book is a slog. His message is important, which makes it unfortunate Breyer could not manage a condensed version. I am sympathetic to his purpose-based approach. I find originalism asinine. Textual (not the same thing) without more is inadequate. And, a book about how the Court is doing it wrong (though he is loathed to admit his colleagues, to whom he dedicated the book, using their first names, are ideologically biased) has value. 

I wouldn't suggest this one even if from time to time there are some kernels of interest. 

Yes, It's Bad, Even if It Is Not TOTALLY HORRIBLE

Some takes on the Supreme Court opinions underline how horrible everything is. Then, some people respond to argue things aren't that bad. They are pretty bad.

Multiple cases (including one handed down today allowing more time for people to sue) are blows against the administrative state. The opinions were 6-3 and each liberal took turns dissenting from the bench. The administrative state isn't dead. But, surely, as a whole, these cases were a BFD that were part of a years-long campaign.  

The 1/6 statutory case was of limited reach. Nonetheless, it was problematic, especially how the case was framed. And, the majority [Jackson tried to show otherwise in her concurrence] helped. The "vibes" can influence lower court actions and how the overall prosecutions are interpreted publicly:

Among other things, that misperception will only further embolden a future President Trump, if he wins election this November, to drop the remaining January 6 prosecutions and pardon those already convicted — even where the charges are completely unrelated to the statute the court narrowed in Fischer. The justices are savvy, smart people who live both physically and metaphorically inside the Capital Beltway. They should have known better.

A reference in today's immunity case even suggests it might have some implications in the Trump trial. The Trump immunity opinion, which is horrible in a variety of ways, does not seal out all means to prosecute him.

Nonetheless, it significantly expanded (with the backing of a majority opinion of the Supreme Court) the reach of immunity from prosecution. Official presidential acts or even those on the edge ("presumptively" protected) now are immune, based on made-up rules. Melissa Murray of Strict Scrutiny underlines the breadth (here Barrett got off the bus):

Another huge aspect of this decision that is not being covered in media coverage--conduct that is protected (i.e. cannot be prosecuted) also can't be used as evidence to prove charges stemming from conduct that is unprotected. Totally hamstrings the prosecution. This is huge.

You know this is bad when the dissents don't end with "respectfully" dissent:

With fear for our democracy, I dissent. [Sotomayor]

In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent. [Jackson]

Sotomayor dissented from the bench. The Supreme Court does not deign to provide audio or a transcript. Jackson dissented from the bench in today's administrative law case, which received less attention but was still important.

To bring the liberal trifecta (Barrett wrote the administrative case & Roberts the Trump immunity case), Kagan had the middle case involving Texas and Florida laws that targeted social media. All nine justices agreed the litigants aimed too high ("facial challenge").  

A mixed majority went along with some more of Kagan's opinion, including a takedown on the Fifth Circuit. Three conservatives and to a lesser extent Jackson were careful to note the complexity of the issues. They felt the majority went too far into the weeds. 

Kagan crafting together as much of a majority (six justices joined parts of her opinion) was something of a surprise. Many predicted someone else would write the opinion and that it would be more fractured. Anyway, the opinion was the calm in the storm, between two more problematic rulings.

Opinions done. They will hand down a "clean-up" Order List tomorrow. And, then it's summer recess with the usual practice being three summer order lists to quickly address odds and ends that come up before they come back. 

Call to Action 

The Supreme Court reminds us about what should be our focus. Dwelling on a bad debate performance or hoping for unicorns? Not what we should be doing.

First, we need to win in November. 

Second, we need to reaffirm basic values. Justice Jackson's dissent in the Trump immunity case was a philosophical exercise, including the importance of individual accountability and limited presidential power. The administrative law cases also provide us a chance to address basic principles, including the role of Congress and expertise.

Finally, we have to focus on the problems with the Supreme Court. And, this Supreme Court in particular. They have ethical problems. Have too much unlimited power. And, standing pat without statutory and perhaps constitutional change (e.g., term limits) is untenable at this point.

The last part is a long time process. Change also will often require a trifecta (control of the presidency and Congress). We can imagine limited change (e.g., ethical tweaks) without that. Also, control of one house can result in oversight hearings and some pressure. 

An informed citizenry starts now.