“Is the Supreme Court Out of Control?” Constitution Day program explores the answers

“The power of judicial review in this country is one of the most remarkable features of our Constitution and of our political system—the power of the courts to strike down and overturn enactments or actions of the elected branches of government on grounds that they violate the U.S. Constitution,” said President and Joseph Crea Dean David Meyer in introducing Brooklyn Law School’s annual Constitution Day program, “Is the Supreme Court Out of Control?,” on September 18th. “The equally remarkable feature of that power,” Meyer continued, “is that its effectiveness depends on the acceptance of the legitimacy of the Supreme Court’s authority.” Yet amid controversies swirling around high court ethics, reliance on originalist theory, and the influence of partisan politics on decisions, public faith in the Supreme Court is currently at an all-time low (according to findings of the Pew Research Center). “We are now in another moment of crisis for the Court,” Meyer said.

Shedding light on this crisis from various perspectives was a panel of Brooklyn Law’s constitutional law experts, William Araiza, Stanley A. August Professor of Law; Wilfred U. Codrington III, Dean’s Research Scholar and Associate Professor of Law; and Susan Herman, Ruth Bader Ginsburg Professor of Law.

Professor Codrington launched the discussion with an examination of ethical issues inside and outside the court. “Historically, the Supreme Court has sought to keep itself out of the news for anything other than its opinions. But that’s not the case now,” Codrington said. He cited the examples of Justice Samuel Alito taking unreported luxury trips paid for by a hedge fund mogul who had business before the Court, and then not recusing himself from either that case or another that involved an attorney who was also a member of the press who he had a working relationship with. Then there is Justice Clarence Thomas, with unreported gifts from billionaire Harlan Crowe, and a spouse, Ginni, who, Codrington said, “is an extreme outlier in terms of political behavior… and has casually attended insurrection rallies. Yet Justice Thomas is ok presiding over questions related to January 6th. These are among many revelations that seem to reek of corruption, and the word seems is important because the perception of conflict is what determines the appropriateness of recusal.”

“Calls for Congress to mandate a Supreme Court ethics code have been rejected by Justice Alito, and Chief Justice Roberts declined to testify at a Senate committee hearing on that and related matters, while Justice Kagan has stated that it cannot be the case that the court is the only institution that is not subject to checks and balances,” Codrington said.

“In its actual business—in notable cases such as the Dobbs decision overturning Roe v. Wade, the invalidation of Harvard and University of North Carolina affirmative action admissions programs, and in removing the authority of the Environmental Protection Agency to regulate carbon dioxide emissions in West Virginia v. EPA—the Supreme Court seems wildly unrestrained,” Codrington said, “and is unwilling to apply stare decisis or other doctrine and principles that instill judicial modesty and restraint.”

Professor Herman took up the subject of partisanship. The Justices deny being partisan, but nevertheless reach conservative results by basing their decisions on an originalist judicial philosophy. “If the touch point here is what the law was when the Constitution was originally framed,” she said, “it erases the democratization of the country. Women and ethnic minorities were not then represented in the political process that created these statutes.”

“It’s a regressive interpretation of the Constitution. [The Justices] vote for conservative results because the viewpoint of the framers and ratifiers of the Constitution, the people who understood the original public meaning of these particular words in the Constitution, is their touchstone. Nothing can evolve after that.”

This is in contrast to previous cases where stare decisis was applied, such as Planned Parenthood v. Casey, in 1992, which reaffirmed the right to abortion regardless of whether the Justices in the majority agreed with the decision in Roe v. Wade.

As a current example of the challenges the Court’s originalist approach presents, Herman cited the upcoming Second Amendment case of U.S. v. Rahimi, which involves an individual who, while not having been convicted of a domestic-violence crime, was under an order of protection against him because of his violent treatment of his girlfriend. After exhibiting further violent behavior with guns, he was found to have violated the federal law against possessing a firearm while under a protective order. The Fifth Circuit Court of Appeals reversed this conviction because there was no 18th-century analogue to such protection of victims of domestic violence in the eighteenth century. In deciding whether this law violates the Second Amendment on its face, “the Court will have to answer some important questions,” Herman said.

Professor Araiza addressed the question of how courts review agency interpretations of statutes, and of the Supreme Court’s decreased deference to agency expertise. “It seems to me that the opposite of being out of control is deferring,” Araiza said. “That is to say, recognizing the appropriate prerogatives of other institutions, for example, other branches of government. So you think about big statutes, of the Clean Air Act, the Immigration and Nationality Act of 1965, the Securities Act of 1934. These are critically important statutes that don't answer every conceivable regulatory issue that might arise in the course of that statute’s life. So the question naturally arose, how much deference should there be to the agency involved, to the SEC, the EPA, etcetera, when the agency interprets their organic statute?”

He cited the 1984 Clean Air Act case of Chevron U.S.A., Inc. v. NRDC, that ruled that a government agency must conform to any clear legislative statements when interpreting and applying a law, but courts will give the agency deference in ambiguous situations as long as its interpretation is reasonable. In other words, in this case, the EPA has greater expertise about what the Clean Air Act means than the federal courts do, and therefore the EPA should enjoy deference when it interprets ambiguous provisions of the Act.

The Chevron case created a two-step test, Araiza explained. The first step is asking whether the statute in question clearly answered the interpreter’s vision. Step 2 is, if the statute is ambiguous, then the Court will defer to any reasonable agency interpretation, even if it's an interpretation that the Court itself would not adopt.

“I think an important justification for Chevron is this idea of delegation—the idea that when Congress enacted the statute for the Clean Air Act, for example, if they did not answer every interpretive question that might arise, then, if they gave the EPA the authority to implement the statute, that constitutes an implicit delegation of authority to the agency to make the interpretive calls, as opposed to having the courts do that, interpreting in the first instance,” Araiza said.

In the past 30 years, however, the Supreme Court has adopted a broader view of the major questions doctrine, Araiza said, which is a principle of statutory interpretation in U.S. administrative law which states that courts will presume that Congress does not delegate to executive agencies issues of major political or economic significance. He cited cases, beginning with the 1994 case of MCI Telecommunications Corp. v. AT&T Co., concerning whether the Federal Communications Commission could set aside the requirement that each telecommunications common carrier file a tariff establishing fixed terms and prices for its services. The Court’s answer was no. “The court basically says, we're not going to get to step two of Chevron. Instead, we're going to stop at step one. We’re going to find that the statute clearly answers the question. Why? Well, among other reasons, because we can’t imagine that Congress would have delegated such an important question as this to the agency to decide. We just have to look harder, take the statute, turn it around, read it upside down, fold one side over, and maybe we’ll find a clear meaning and we’ll stop at step one,” Araiza said.

“However you slice it,” said Araiza, “what we are seeing today is a court that is out of control. That is to say, a court that has gone beyond its lane. If you believe that Chevron was right and if you believe in particular that the agencies are expert and know more than the courts do about what the Clean Air Act or the Securities Act of 1934 are. And if you believe that in deciding to not answer every question, but in giving the authority to decide those questions to an agency, Congress has actually spoken to the issue and delegated the question to the Agency. If you believe either one or both of those things, then the major questions doctrine is really problematic.”