Legal expert analysis: The fascist Republican Party legal movement

Our thesis may be simply stated: basic democratic theory requires that there be knowledge not only of who governs but of how policy decisions are made. .... We maintain that the secrecy which pervades Congress, the executive branch and courts is itself the enemy. .... For all we know, the justices engage in some sort of latter-day intellectual haruspication, followed by the assignment of someone to write an opinion to explain, justify or rationalize the decision so reached. .... That the opinion(s) cannot be fully persuasive, or at times even partially so, is a matter of common knowledge among those who make their living following Court proclamations. -- AS Miller and DS Sastry, Secrecy and the Supreme Court: On the Need for Piercing the Red Velour Curtain, 1973, In this paper, Miller and Sastry bitterly criticize the court’s practice of deciding a case first, then coming up with a legal rational to justify the result. That is the opposite of how the law is supposed to work. Cases are supposed to be decided based on how the facts of the case fit with legal principles and doctrines, not the opposite way around. The court vehemently claims it works as intended, but that is not true especially with the current, hyper-partisan, radical right Supreme Court. On this point, the court has been a big fat liar for decades. The court relied heavily on unwarranted and unjustified secrecy to hide its partisanship, sloppiness and laziness, and to deny inconvenient facts and truths as needed.

Q: How would that court decide cases?

A: The right way, or else

(No, this is not an allegation that the fascist  

Republicans on the Supreme Court are Nazis)

Since congress is likely to stay gridlocked for a long time, the Supreme Court is the key place in federal government where Republican Party fascism can exert power and rapidly advance its anti-democratic agenda. In an opinion piece, Adrian Vermeule, the Ralph S. Tyler Jr. professor of constitutional law at Harvard Law School, gives his analysis of the current conservative legal movement. 

The key point he argues is that there is no conservative legal movement other than outcomes of cases. The Republican fascists on the court just make rationales up to defend their decisions as “constitutional” for whatever reason(s) they can dream up. If Originalism fits, then that will be the basis of the court’s “rational.” If the court says it decides because there is an “extraordinary case” and the court had to apply a “different approach” than the ordinary legal principles, that is how cases will be decided. In other words, the Republican fascists know in advance exactly what outcomes they want from each case they pick up and decide it. Once they know what decision will be, the radicals then make up the reasoning to support it. 

Vermeule relies heavily the recent Supreme Court decision that guts the authority of the EPA to regulate carbon dioxide to exemplify the facts and his reasoning based thereon. This analysis is really interesting and important, so I include most of his essay here. Vermeule writes in the Washington Post:

There is no conservative legal movement

Originalism, textualism and judicial restraint all got short shrift in this term’s major environmental-regulations decision.

On the last day of the Supreme Court’s term, in a case called West Virginia v. Environmental Protection Agency, the Court declared that the Clean Air Act does not clearly authorize the EPA to create a Clean Power Plan — in other words, to set standards for emissions from existing power plants with a view to encouraging “generation shifting” of electricity production toward sources that emit less carbon dioxide. If this does not sound like the stuff of great events, it was made so by the court’s approach to the case. Chief Justice John G. Roberts Jr., writing for the majority, announced expressly, for the first time, that the court would apply a “major questions doctrine.” According to the majority, the doctrine holds that in “extraordinary cases” the court will apply a “different approach” than the ordinary legal principles governing the interpretation of statutes. Instead, it will demand clear congressional authorization for agency action that is, in the judges’ view, “highly consequential,” posing questions of “economic and political significance.”

Commentators rushed to discuss the significance of West Virginia v. EPA for the conservative legal movement, to which they assumed the justices in the majority belong, perhaps because the court limited abortion rights and strengthened gun rights in the same term. But that framing rests on an error: In reality, as this case makes clear, there is no conservative legal movement, at least if legal conservatism is defined by jurisprudential methods rather than a collection of results. West Virginia v. EPA illustrates that every last methodological tenet professed by the movement will be downplayed, qualified or abandoned when the chance arises to limit the regulatory authority of the federal agencies, especially in environmental matters.

The conservative legal movement distinguishes itself from other approaches by declaring itself united not around “results-oriented jurisprudence” but rather around a set of supposedly neutral methods for interpreting legal texts. Conservative jurisprudence — again, as advertised — has four pillars: originalism, textualism, traditionalism and judicial restraint. Although different conservatives emphasize one or the other approach, all are staples of Federalist Society events and lauded in the opinions of conservative justices.

It is grimly hilarious, then, that the court’s opinion in West Virginia v. EPA follows none of these methods. It is not an “originalist” opinion. Originalism purports to ground the interpretation of legal texts in the original public meaning as understood by the founding generation, for constitutional provisions, or in the original public meaning of enacted statutes. As Justice Neil M. Gorsuch recently wrote in Bostock v. Clayton County, which recognized sexual orientation and gender identity as protected categories under federal civil rights law, “this Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.” In West Virginia v. EPA, however, neither the majority nor Gorsuch’s concurrence shows any interest in the original context or public understanding of the Clean Air Act provisions enacted in 1970 — perhaps because, as the court put it soon afterward in 1976, those provisions were widely understood to create a “drastic remedy.” In West Virginia v. EPA, the original understanding of the relevant provisions is absent without leave.

The court briefly, and Gorsuch laboriously, tried to ground the major questions doctrine in the separation of powers and the “nondelegation doctrine,” a putative constitutional principle which holds that Congress may not grant rulemaking authority to the executive in excessively broad or discretionary terms. On this view, the major questions doctrine is used to construe statutes narrowly to avoid a potential question of constitutionally invalid delegation. Requiring clear congressional authorization for important agency action, the argument runs, represents an attempt to implement the separation of powers at the level of statutory interpretation rather than constitutional law.

The problem, from an originalist standpoint, is that there is no constitutional question to avoid; the originalist credentials of the nondelegation doctrine are shockingly thin. Careful scholarship has confirmed the thesis that the nondelegation doctrine was essentially nonexistent during the founding era, in which the first Congress made broad delegations to the executive in a variety of areas, including military service, territorial government and relations with Indian tribes.

The doctrine is basically a creation of the Supreme Court in the later 19th century, and even then it did not control the outcomes of cases; the court has only twice in its entire history applied the doctrine as a matter of constitutional law, invalidating the central components of the New Deal’s National Industrial Recovery Act in 1935 — some 150 years after the Constitution’s structural provisions were written. Although Gorsuch’s concurrence tries to blur the nondelegation doctrine’s desperate lack of originalist credentials with a long string of citations to academic works, those arguments mainly eschew historical particulars in favor of abstract constitutional theory, and in the end the facts of the founding era are what they are: In the vast landscape of contemporary documents, total mentions of anything like a nondelegation principle would take up less space than an op-ed. Nondelegation is an invented tradition.

The decision is also not textualist, as Justice Elena Kagan observed in a crushing dissent. Textualism says that the ordinary meaning of statutory text is the law, but the majority‘s statutory analysis is cursory, and that of Gorsuch basically nonexistent. The court briefly claims that the major questions doctrine captures the ordinary understanding of Congress in situations where agency action has “economic and political significance.” (What agency action doesn’t?) But the court itself also makes a point of saying that the doctrine counsels against “a reading of a statute that would, under more ‘ordinary’ circumstances, be upheld.” The only cases in which the doctrine possibly makes a difference arise when the courts believe that a “highly consequential” issue warrants an extraordinary override of ordinary statutory meaning.

Finally, West Virginia v. EPA is not “restrained” in any possible sense. At the level of procedure, the court decided a case in which, remarkably, no agency rule existed. The Clean Power Plan had been repealed by the Trump administration, and the Biden administration had asked the lower courts not to reinstate it. Nonetheless, the justices felt that there was a sufficient threat that EPA might try to create such a rule in the future. Any more such restraint, and the court will end up dispensing with actual cases and controversies altogether in favor of pronouncing on abstract hypotheticals.

On the merits, the court insists, again and again, that the doctrine applies when cases are “extraordinary.” But this is not only to admit, but indeed to proudly proclaim, that this is a doctrine ungoverned by ordinary legal principles. Some legal doctrines are unpredictable in application; here unpredictability is built into the essence of the doctrine itself. Who knows when the court, or for that matter any one of the nation’s 700 district judges, will deem a case “extraordinary” and shut down a national federal regulatory program? Moreover, despite insisting that major questions cases are extraordinary, the court inconsistently went on to describe them as arising “from all corners of the administrative state” — a clear signal that the court expects its anti-regulatory approach to be routinely invoked in the future. The extraordinary has become ordinary. The doctrine displays the same vagueness of standards that the court finds objectionable, under the nondelegation rubric, when authority is granted to agencies. What is constitutional overreach for unelected bureaucrats in the agencies is constitutional virtue for the unelected bureaucrats on the bench. Whatever this is, judicial restraint it is not.

So, there you have it legal analysis fans. The Republican Supreme Court just makes things up to get the decisions it wants. There is essentially no legal principle in it at all. It is almost completely outcome driven, not principles of law driven. 

The court decides the case and then dreams up a rational to support the decision. That is exactly what Miller and Sastry bitterly criticized in 1973. The difference between 1973 and 2022 is that the Republicans on the 2022 court are anti-democratic, fascist, radical Christian nationalist and radical laissez-faire capitalist. The judges back in 1973 weren't as hostile to democracy and principled rule of law as the six radical Republican extremists. 

Those six yahoos are fixin’ to fix this country as they see fit. Most of us are not going to like what we are going to get. But elite Republican Party politicians and supporters are going to love what is coming their way, namely even greater amounts of wealth and power than they possess now.