WASHINGTON — 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 phenomenon was documented last month by Mark A. Lemley, a law professor at Stanford, in an article called “The Imperial Supreme Court” in The Harvard Law Review.
“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.”
A second study, to be published in Presidential Studies Quarterly, concentrated on cases involving the executive branch and backed up Professor Lemley’s observations with data. Taking account of 3,660 decisions since 1937, the study found that the court led since 2005 by Chief Justice John G. Roberts Jr. has been “uniquely willing to check executive authority.”
This trend was even more pronounced in cases discussed in law school casebooks and featured on the front page of this newspaper. The executive branch in the Roberts court era won just 35 percent of the time in those cases, a rate more than 20 percentage points lower than the historical average.
The study’s authors, Rebecca L. Brown and Lee Epstein, both of the University of Southern California, wrote that “there is little indication that the Roberts court’s willingness to rule against the president bears any reliable relation to preserving the balance among the branches or the workings and accountability of the democratic process.”
“Instead,” they wrote, “there are increasingly frequent indications that the court is establishing a position of judicial supremacy over the president and Congress.”
Professor Brown added in an interview that the nature of the court’s reasoning has shifted.
“When the court used to rule in favor of the president, they would do so with a sort of humility,” she said. “They would say: ‘It’s not up to us to decide this. We will defer to the president. He wins.’ Now the court says, ‘The president wins because we think he’s right.’”
Nor does the Supreme Court seem to trust lower federal courts. It has, for instance, made a habit of hearing cases before federal appeals courts have ruled on them, using a procedure called “certiorari before judgment.” It used to be reserved for exceptional cases like President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor or President Harry S. Truman’s seizure of the steel industry.
Before 2019, the court had not used the procedure for 15 years, according to statistics compiled by Stephen Vladeck, a law professor at the University of Texas at Austin. Since then, he found, the court has used it 19 times.
The court has been using another kind of shortcut to enhance its power, as two law professors — Lisa Tucker of Drexel University and Stefanie A. Lindquist of Arizona State University — demonstrated in a recent guest essay. The court has been, they wrote, “increasingly setting aside legally significant decisions from the lower courts as if they had never happened, invalidating them in brief procedural orders.”
Yet another study, from Tejas Narechania, a law professor at the University of California, Berkeley, examined the cases selected by the justices for full-blown review on the merits.
“The Roberts court, more than any other court in history, uses its docket-setting discretion to select cases that allow it to revisit and overrule precedent,” Professor Narechania found in the study, which will be published in the St. Louis University Law Journal and built on an earlier one in the Columbia Law Review.
In September, in remarks at a judicial conference, Chief Justice Roberts insisted on the court’s primacy.
“You don’t want the political branches telling you what the law is,” he said, echoing Chief Justice John Marshall’s famous statement in Marbury v. Madison, the foundational 1803 decision: “It is emphatically the province and duty of the judicial branch to say what the law is.”
The statement is popular with the current court. “Over half of the total number of majority or concurring opinions in Supreme Court history to have quoted this language from Marbury,” Professors Brown and Epstein wrote, “have been penned by the Roberts court.”
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