A rare glimpse of how the USSC works

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,  Buffalo Law Review, 22(3):799, 1973 (my blog post on this paper)

Everything degenerates, even the administration of justice, nothing is safe that does not show it can bear discussion and publicity. .... Power tends to corrupt, and absolute power corrupts absolutely. -- Lord Acton, 1834-1902

To hell with that mode of operations --

it's busted

The Daily Beast reports about a rare leak regarding internal USSC (US supreme court) operations to CNN:

The Supreme Court has been hit by a new damaging leak over its abortion decisions in a fresh blow to its embattled reputation—and a hint of even more leaks to come.

Intimate details of months of disagreement among the nine justices were reported at length by CNN Monday, just hours after President Joe Biden and Vice President Kamala Harris both backed major reforms to the court, with the president accusing justices of being “above the law.” CNN also said its report was the first of a series, suggesting more leaks ahead.

The justices are likely to be extremely concerned at the level of detail CNN has obtained about their internal divisions over the case Moyle v. United States. It was prompted by Idaho introducing an extreme abortion ban in the wake of the Dobbs decision overturning Roe v. Wade, which would have criminalized doctors performing abortions under any circumstances. That move prompted the federal government to introduce formal guidance that hospitals receiving federal Medicare funding had to offer emergency abortions—which Idaho’s Republican attorney general tried to challenge.

Initially Idaho had the case taken up as an emergency by the Supreme Court and got an emergency stay of the federal Medicare move in January on the court’s so-called “shadow docket.”

CNN revealed Monday that the stay was issued 6-3, splitting along ideological lines, a split which had never been known before and should be a secret.

But that split was then followed by sixth months of fracturing among the conservative justices, the outlet revealed. Among the leaked facts were that after a public hearing on the case in April, the justices’ private vote revealed no clear majority for resolution. Private votes of the justices are considered one of the court’s most closely guarded secrets.

Conservatives John Roberts, the chief justice, and Brett Kavanaugh both “expressed an openness to ending the case without resolving it,” CNN reported.

The leak also reveals that Roberts then abandoned normal protocol and did not assign the writing of the majority decision to any of the justices, leading to months of negotiations.

Instead he, Kavanaugh and conservative Amy Coney Barrett worked on an opinion which would call the case “improvidently granted,” a rare move to essentially admit that the court should never have taken it up.

But CNN reveals that the other conservatives—Samuel Alito, the author of the Dobbs decision, Clarence Thomas and Neil Gorsuch—argued from April until June that Idaho should have its abortion ban upheld. Alito was described as “adamant” that the Biden administration was in the wrong, CNN said.

The report reveals that Roberts, Barrett and Kavanaugh were then offered a compromise in “negotiations” with liberals Elena Kagan and Sonia Sotomayor, which was eventually what prevailed: a ruling not that the court had made a mistake in taking the case, but that Idaho had not shown “irreparable harm” by the Supreme Court setting aside its emergency stay of the federal guidelines. The liberals accepted, leading to the June ruling.

Such a lengthy and extensive leak of internal disagreements and the specifics of procedures and draft opinions are likely to cause extreme concern inside the court and particularly for Roberts. A lengthy probe into the 2022 Roe v. Wade leak— called “appalling” by Roberts—saw U.S. Marshals demand access to clerks’ private texts and emails but did not find a culprit.

Given the moral collapse and authoritarian radicalization of the Republicans on the USSC, there is no reason to trust its opinions or its fidelity to democracy or the rule of law. I sincerely hope that CNN leaks and leaks and leaks. The leak of the Dobbs case that overturned Roe was not appalling as the radical authoritarian justice Roberts claims. It is the six Republicans on the bench and the secrecy they demand to operate in that is appalling. And in view of the current circumstances of radical authoritarian extremism, secrecy as usual is ghastly and unjustifiable.

Of course, if transparency is injected into internal USSC operations and decision-making, what might the bad consequences be assuming there would be some? I assume that the six Republicans could simply stop talking to the three Democrats and just do whatever they want without any input from them other than their dissenting or concurring votes and opinions. That would make the USSC just like the House is now (and the Senate probably will be if the Repubs regain Senate control and DJT wins re-election). Raw power is the only thing that counts. 

If it boils down to just raw power in all three branches of government, one can argue that our democracy and the compromise that it demands will be severely damaged. Maybe that is inevitable.

News bits: About the Supreme Court leak investigation, etc.

First bit context

Everything degenerates, even the administration of justice, nothing is safe that does not show it can bear discussion and publicity. .... Power tends to corrupt, and absolute power corrupts absolutely. -- Lord Acton, 1834-1902

Power cloaked in unwarranted opacity, tends to accelerate, harden and deepen corruption. The Supreme Court has an awful lot of power and it is awfully opaque. That opacity can hide an awful lot of corruption, including partisan politics. Hidden corruption in government deceives and betrays the public. -- Germaine, 2021 

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[1], 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. -- A.S. Miller and D.S. Sastry, Secrecy and the Supreme Court: On the Need for Piercing the Red Velour Curtain, 1973

The investigation told us nothing, and that plus the totality of circumstances leaves plenty of room for rational cynicism: A couple of points are worth mentioning about the internal investigation into the leaked draft Dobbs anti-abortion decision of last year. First, the Republican court put Michael Chertoff in charge of the investigation. Chertoff is a longtime loyal Republican elite who worked as Homeland Secretary under George Bush. For some people, that leaves him with no credibility, for others it bolsters his credibility, while others have no idea of who he is and/or don’t care. For some, the investigation’s credibility will reflect their trust in the court and/or Chertoff.

Second, the final report claims that al though the investigation was thorough, the investigators were unable find a “preponderance of evidence” for anyone who might have leaked the draft.  The preponderance of evidence standard is the lowest level the law recognizes as needed to establish liability for any law breaking. In common language, it literally means more likely than not, or any amount over 50% likelihood. One interpretation of that is that internal court operations are rather sloppy. 

Two court watchers speculated that the investigation did not even talk under oath to any of the justices themselves. They just pleasantly chatted off the record. That feels probably right to me. The boundless smug arrogance and utter unwillingness of Supreme Court judges to even think about any significant public transparency or accountability has been well-known for decades. For decades, the court has refused to allow cameras at oral arguments. For centuries, the court has refused to allow one glimpse of the inner workings of its decision-making process. The Supreme Court is just an arrogant beast that puts out decisions is strict secrecy. 

On rare occasions when anyone has the guts to actually ask a Supreme Court judge why all the secrecy, the answer always has been and still is, more or less, “the secrecy is needed for obvious reasons.” Of course that assumes the judge will answer the question. Usually they won’t answer because they know there is no rational answer. The secrecy is in place to hide the judge’s partisanship and party loyalty, prejudices, incompetence, conflicts of interest, irrationality, authoritarianism, sympathy for corruption, treason, etc.

Finally, the first sentence of the investigation report flatly stated that the leak of the draft Dobbs anti-abortion birth decision, which now underpins forced-birth laws in red states, constitutes one of the greatest breaches of trust in Supreme Court history. Think about that for a moment. What trust was breached? How was it breached? By letting the public get a glimpse of the court’s reasoning in a draft opinion, the public got to see something that it us usually prevented from seeing. The justices would answer those questions about any allegedly breached trust with a dismissive the secrecy is needed for obvious reasons. 

Pardon my French, but what a bunch of fucking lies from a bunch of fucking arrogant, lying jackasses. In my opinion, lying jackass justice Sam Alito leaked the draft pro-theocracy Dobbs decision, just like he leaked his 2014 pro-theocracy Burwell v. Hobby Lobby Store decision. If he didn’t, I put the burden of proof on him to show his innocence. Of course with his vast imperial arrogance, he would never deign to even listen to the allegation. So, my opinion will remain safely unrebutted forever.

At least, that’s how I analyze it. (Woof! Sounds like someone was in a snit! Cool your jets there dude!)

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The endless legal morass that is Trumplandia: What an awful mess of blither, lies, slanders and enough crackpottery to make QAnon flinch (briefly) before posting it or Faux News flinch (briefly) before “reporting” on the horrors and persecutions that poor Trump was suffering under. Two days ago, a judge finally blew up. The judge whacked scumbag Trump and his scumbag lawyer for filing a frivolous lawsuit against Hillary and a slew of other people. The judge imposed $937,989.39 in liability against Trump and Alina Habba, his lead attorney. Clinton's share of those legal fees will be $171,631.

Yesterday, Trump withdrew an other lies and crackpottery lawsuit he had filed against NY AG Letitia James. James was suing Trump for $250 million in a fraud lawsuit against his New York-based real-estate empire, the Trump Organization. The same judge was handling both cases. The judge had already warned Trump that his lawsuit against James “had all the telltale signs of being both vexatious and frivolous.” 

Vexatious and frivolous? That’s an understatement to say the least. Trumplandia is a hellscape. 

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From the Aw Crud, Rut Roh! Files: Playing Russian Roulette with climate change and our lives: Accidental discoveries about a massive glacier in the Antarctic is sending out waves of intense creepiness and mounting fear. The NYT writes about a series of accidental discoveries that are deeply worrying. Now the possibility is at least 15 feet of sea level rise. This could happen in an unknown time period from a massive glacier that was believed to be stable but isn’t. 

The article is long and complicated, but the upshot is that scientists are now scrambling to get research ships and remote controlled submarine instrument vessels sent to the site as soon as possible. The glacier in now play for sea level rise is called the Denman Glacier. Not only is it gigantic, it acts as a cork to keep much larger glaciers from being exposed to sea water than has just been discovered to be much warmer than was previously believed. 

The initial accidental discovery was when a big elephant seal with instruments attached to it traveled to Denman Glacier in 2011. Elephant seals were not believed to go there. The data the instruments sent back was scary, i.e., the water was too warm, but scientists overlooked it and the data was ignored. Then another accident occurred when a remote controlled submarine instrument vessel got taken off course by water currents and it wound up at Denman in 2020. It sent back very scary data. The water was way too warm compared to what it was believed to be. Scientists went back to the data from the seal in 2011 and confirmed that warm water (slightly below freezing, which is way too warm for that area) had reached Denman.

Now, everybody is frantically planning trips to Denman. Research ships from Australia and Germany are now planned to get to Denman in 2024. The NYT article concludes with this:

One of the most disconcerting things about climate change is that what we do not know may hurt us the most. When it comes to Denman, said Van Wijk, “we probably know more about parts of the moon.” It is thanks in part to good fortune that we know as much as we do. We have had news from a seal and a robot, but it looks like it is time to send in the humans.

What the hell else is there we still do not know about?

This being a site about politics, this has to be said: The pro-pollution, pro-climate change, anti-climate science Republican Party and businesses that profit from polluting and climate change are playing Russian Roulette with our lives, our standard of living and modern civilization. Climate change is deadly serious business, but the polluters lie about it, downplay it, deny it, slander the scientists, lie about the science and do whatever they can to maintain a profitable but dangerous and unsustainable status quo. This is far beyond unacceptable. 

This is not democracy. This is fascism. 

Commentaries on the oral arguments in Moore v. Harper

The ones in red circles are fixin’ to fix 

American democracy by damaging it, 

or destroying it completely

Multiple sources are commenting in yesterday’s Supreme Court oral arguments in the Moore v. Harper case that will decide about the independent state legislature doctrine (ISLD). The ISLD holds that state courts cannot interfere much or at all with rules state legislatures make to control elections. Deciding in favor of a robust vision of the ISLD would leave legislatures free to subvert elections and suppress voters. 

A robust vision of ISLD would give red states the power they want to destroy democracy in America. This would roughly parallel how Viktor Orban destroyed democracy in Hungary after being elected into power in 2010. After 2010, national elections in Hungary were rigged and Orban could not lose.

Observers of the oral arguments in Moore suggest there is significant disagreement among the six radical right Republicans. The three Democrats are hostile to ISLD. Three of the radical Republicans are sympathetic to it (Alito, Thomas, Gorsuch), but three are apparently conflicted about it (Roberts, Kavanaugh and Barrett). The conflicted ones apparently do not want to appear to be what they actually are, i.e., partisan Republican Party politicians wearing black robes. 

This is a real surprise to me. I did not imagine that Kavanaugh or Barrett would have any qualms about an appearance of being radical right Republican politicians. Those two are Republican Party fire breathers. I figured they just didn't care about the appearance or actuality of partisanship. 

Politico writes:

The spotlight for Wednesday’s oral arguments was focused on three of the high court’s six conservative justices: Chief Justice John Roberts and Associate Justices Amy Coney Barrett and Brett Kavanaugh.

Those three justices will likely serve as the deciding factor in any decision. The court’s three liberals were extremely hostile to the theory during oral arguments, while the three other conservatives have signaled sympathy for a muscular version of the theory, both in previous writings and during arguments in front of the court on Wednesday.

Questioning from Roberts to David Thompson, who was representing the Republican legislators, showed hostility to the independent state legislature theory.

“Vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants,” Roberts said, citing a 1930s Supreme Court case that found that the U.S. Constitution didn’t prohibit governors from vetoing a congressional map passed by legislatures.

But later, Roberts’ questioning to Neal Katyal, who represented the groups that challenged the initial legislatively drawn maps, showed how some of the court’s swing conservative justices could still potentially rule in favor of the GOP lawmakers without embracing the most robust interpretation of the independent state legislature theory. Roberts seemed to be potentially probing for a way to constrain state courts in some way, particularly on what could be decisions based on broad constitutional provisions.

“Do you think the phrase ‘fair and free elections’ is providing standards and guidelines?” he asked Katyal, who responded affirmatively.

That suggests that the three conflicted ones will look for some version of ISLD that looks and maybe is less extreme than what they actually want but are hesitant to impose for the sake of political optics. A brilliant analysis by Above the Law points to the conflict between optics and the underlying Republican radicalism that are pushing in opposite directions, for and against the ISLD: 

If one were so inclined, the smart money said the Supreme Court would functionally cancel democratic elections, or to be more technical, “cancel any check on gerrymandered state legislatures from erasing elections if they wanted to.”

As the argument unfolded, three distinct camps emerged, with Jackson, Kagan, and Sotomayor opposed to the whole goofy theory; Alito, Gorsuch, and Thomas thrilling at the prospect of authoritarian rule; and the Chief, Barrett, and Kavanaugh wishing there was some way to let Republicans gerrymander at will without turning North Carolina elections into North Korean elections.

Neal Katyal went right at the conservatives with receipts — straight up calling his shot, announcing that he’d been “waiting for this case” so he could unload his can of originalism on Justice Thomas — quoting back their own opinions from every time the shoe was on the other foot, prompting a series of blubbering exchanges from the frustrated justices. His exchange with Gorsuch set the tone. The justice asked Katyal for “one example” of the Court employing Katyal’s theory. He cited a 19th century example. “*grumble* Put that aside!” He cited another. Gorsuch rants and raves trying to figure out why he hadn’t researched this point.** 

** He didn’t research the point because of (i) his rigid authoritarian ideologue radicalism, (ii) his blinding loyalty to the Republican Party, and (iii) normal human confirmation bias and motivated reasoning. All of that allows him to be comfortably and arrogantly self-deluded. All of this is obvious human cognitive biology and social behavior stuff.

Alito concocted a hypothetical about a rogue state supreme court that needed to be brought to heel. Yes… Samuel Alito raised the fear that a court might ignore law and precedent for political gain. You really can’t make this stuff up! Alito is having himself an all-timer week for unintentional comedy. 

Don Verrilli and Elizabeth Prelogar also took turns at battering the GOP theory, with the conservative justices growing quieter if no less strident as the event wore on.

But amid all the twists and turns from Justice Kagan’s incisive questioning (not-too-far-off translation by Professor Leah Litman: “So this theory could end our democracy. Response?”) to Justice Gorsuch arguing that the independent legislature theory is how pre-Civil War Virginia was a bulwark against the 3/5ths clause (or some nonsense), Justice Jackson delivered the most devastating body blow (no transcript… so this may be inexact):

I guess I don’t understand how you can cut the state constitution out of the equation when it is giving the state legislature authority to exercise the legislative power.

Yes. She actually asked this question in different phrasings a few times, but it’s really the only question anyone needs to answer. If state constitutions create state legislatures then how can state legislatures violate state constitutions. It ceases to be a constitutionally ordained legislature at that point!

It’s a chicken and egg problem — except it’s more like which came first the chicken or my dinner tonight — with a single obvious answer. If the state constitution sets guardrails of voting rights and the proper deference required to courts and the executive, then the legislature can only work within that.

At the top of Katyal’s argument he cited the two centuries of election law and declared that it would be “a whole lot of wrong” if “Legislature” meant what the GOP asked for as opposed to how Justice Jackson posed her question.

Occam’s Razor remains undefeated.

Make no mistake, Chief Justice Roberts is on record buying into a watered down version of this theory and will, after today’s battering, probably cobble something together that shields Republican legislatures without straining the outer bounds of basic notions of constitutional governance. But whatever compromise the conservatives try to mold will remain haunted by Jackson’s straightforward question.

Which came first, the state constitution or the state legislature? It’s the constitution. It’s always going to be the constitution.

So, it looks like we will probably get a less than absolute version of the ISLD and American democracy will take a serious but not quite lethal body blow. Less likely, but still possible, is the full blown version of ISLD that Thomas, Gorsuch, and Alito want for the final fix to what ails democracy as they see it. 

As I’ve argued here before, we do not know how the court decides cases because the court shields its decision-making process from public scrutiny “for obvious reasons.” The obvious reasons have never been publicly stated and they probably never will be. 

That unjustifiable secrecy provides the time and opacity needed for the three hyper-radicals, Thomas, Gorsuch, and Alito, to convince at least two of the three conflicted ones to join them in finally killing off American democracy by imposing full-blown ISLD on all of us. A 1973 paper, Secrecy and the Supreme Court: On the Need for Piercing the Red Velour Curtain, criticized the Supreme Court’s opaque decision-making like this:

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.

It feels like there will probably be some nasty haruspication** in American democracy’s future.

** Haruspication: divining truth from a pile of fresh animal guts

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.

Secrecy and the Supreme Court

Everything degenerates, even the administration of justice, nothing is safe that does not show it can bear discussion and publicity. .... Power tends to corrupt, and absolute power corrupts absolutely. -- Lord Acton, 1834-1902

Power cloaked in unwarranted opacity, tends to accelerate, harden and deepen corruption. The Supreme Court has an awful lot of power and it is awfully opaque. That opacity can hide an awful lot of corruption, including partisan politics. Hidden corruption in government deceives and betrays the public. -- Germaine, 2021

Context

A couple of recent Supreme Court (SC) decisions led me to want all nine justices impeached and removed. The first was the SC dismissal of lawsuits against the ex-president for violating the emoluments clause. The court "reasoned" that the case was moot because he was out of office. The reason he was out of office was that the SC refused to rule in the case while he was in office. As I saw it, the court intentionally dragged its feet to protect a deeply corrupt president for partisan political purposes. To protect the ex-president, the court went against its own precedent of allowing cases against politicians out of office for their crimes. None of the three democrats on the court dissented, so I concluded they too voted to defend the indefensible. I wanted all nine impeached and removed from office for that grotesque failure of duty to defend the rule of law.

More recently, the SC unanimously voted to allow prosecutors access to the ex-president's tax and financial documents. Once again, the court intentionally delayed issuing this for months to protect the beast while it was still in office. And again, there was not one word of explanation, including nothing from any of the three democrats. The SC just tossed its nasty thing into the punch bowl and was above explaining the delay to us unwashed masses of fools and mushrooms. Given the secrecy and lack of explanation for the protective delay, that too looked like indefensible politics and another attack on the rule of law. I wanted all nine impeached and removed for that dereliction of duty.

A long standing personal complaint is excessive opacity in the functioning of federal courts, especially the powerful SC.

Secrecy & the Supreme Court

A 1973 paper, Secrecy and the Supreme Court: On the Need for Piercing the Red Velour Curtain, discussed the rationale for secrecy of SC operations and decisions. The paper noted that Judge Felix Frankfurter (1882-1965) argued that, although there is a legitimate need for the public to know how the court operates, the SC could not open itself up to public scrutiny without ceasing to function effectively. Huh??

In reaction to that, common sense flares up and reflexively retorts to Frankfurter: That is sheer nonsense. SC justices are appointed for life precisely to insulate them from public opinion and partisan politics. What the hell are you blithering about?  

Despite that common sense reflex, the paper's authors point out that the Frankfurter rationale, if that's what it is, "has met with virtually unanimous approval." So much for common sense.

The paper's authors write:

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[1], 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.

The authors go on to level a slew of ferocious criticisms of SC secrecy and sloppy thinking and writing. They point to political expediency as the core but hidden source of court decisions. They cite one commentator as describing the practice of opinion formation as "scholarly astrology." They argue that "the very fact that students of the Court exhibit a desire to gain a better understanding of the Court is ample proof that the opinions are inadequate to explain the decision making."

Some factors that can make the process opaque and the product shoddy include a need for compromise to get at least five votes. That can lead to murky thinking and writing. A major source of opacity and confusion arises when judges work backward from conclusions to reach principles instead of using principles to draw conclusions. In other words, judges often decide based on their opinions, biases and values, not on relevant legal principles. They smash the round pegs in their own minds into the square holes of legal principles, often at the partial or complete expense of facts, true truths and sound reasoning. The rationale that secrecy is needed for the decision-making process is not explained, just asserted: "Justice W. J. Brennan states that the conferences are carried out in "absolute secrecy" for "obvious reasons" and avoids any further elucidation of the matter. .... It is the validity of that notion that is challenged in this article."

What are the obvious reasons? Just blurt them out so that we can decide what to believe for ourselves.

Maybe the sources of muddled language and incoherent thinking cannot be avoided. Humans are human, not Vulcans, the Borg, Klingons or goldfish. The situation would be much more understandable and forgivable if some of the secrecy was lifted and the public allowed to see more of how and why decisions are made. That would go a long way toward easing the kinds of suspicions some people have, like me, that SC justices are more corrupt politician-ideologues in black robes than honest, unbiased interpreters of the law.

Footnote: 

1. Haruspication: the act or practice of divination from the entrails (guts) of animals slain in sacrifice, mainly sheep and poultry livers; haruspicy had its heyday as a religion in ancient Rome