The conventional critique of the Supreme Court these days is that it has lurched to the right and is out of step with the public on many issues. That is true so far as it goes.
But a burst of recent legal scholarship makes a deeper point, saying the current court is distinctive in a different way: It has rapidly been accumulating power at the expense of every other part of the government.
“The court has not been favoring one branch of government over another, or favoring states over the federal government, or the rights of people over governments,” Professor Lemley wrote. “Rather, it is withdrawing power from all of them at once.”
He added, “It is a court that is consolidating its power, systematically undercutting any branch of government, federal or state, that might threaten that power, while at the same time undercutting individual rights.”
The arguments this month over the role of state legislatures in setting rules for federal elections seemed to illustrate the point. The questioning suggested that the court was not prepared to adopt a novel legal theory that would upset the ordinary checks and balances at the state level in election litigation.
Rather, the justices seemed ready to elevate their own role in the process, giving themselves the right to do something ordinarily forbidden: second-guess state courts’ interpretations of state law.
In a similar vein, Justice Elena Kagan noted the majority’s imperial impulses in a dissent from a decision in June that limited the Environmental Protection Agency’s ability to address climate change.
“The court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy,” she wrote. “I cannot think of many things more frightening.” [Continue reading…]