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On the Imperial Supreme Court [1]

['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']

Date: 2024-07-01  

I was pointed to this article on “The Imperial Supreme Court” by Professor Mark A. Lemley, Stanford Law School in the November 2022 Harvard Law Review (https://harvardlawreview.org/forum/vol-136/the-imperial-supreme-court/) a couple of days ago. I believe it explains what is happening on the Supreme Court very well.

Lemley’s argument is that the Court is “simultaneously stripping power from every political entity except the Supreme Court itself.” It is claiming more and more judicial authority over Individuals, Congress, the States, the Executive and administrative state, and, of course, the Federal Courts.

We have recently seen the Court take away individuals’ reproductive rights, end the Chevron deference so that the Court will no longer defer to expert opinion on highly technical issues from the Federal agencies; “reflect a judicial decision to reject congressional power even absent a claim that it violated some constitutional right” through the TransUnion and Mazars decisions; impose “new limits on the power of the states to regulate in areas they have long been able to, from public health to public safety;” and increased the use of the shadow docket to go around the lower courts.

These changes can’t be explained by any particular judicial philosophy, “originalism, textualism, dictionary fetishism, stare decisis, or anything else.” The one consistent theme is in centralizing power on the Supreme Court, “which today is not only the most activist of any Court in the past century, but increasingly the locus of all legal power.”

This “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.”

This is deeper than Trmp.

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[1] Url: https://www.dailykos.com/stories/2024/7/1/2250431/-On-the-Imperial-Supreme-Court?pm_campaign=front_page&pm_source=more_community&pm_medium=web

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