Supreme Myths - Segall and Mortenson on the eviction moratorium, Texas, and the "non"-delegation doctrine

 

Georgia State law prof Eric Segall and Michigan's Julian Mortenson are engaging and informative interlocutors.  It's easy conversational tone belies its depth.  Segall remark to Mortenson -  who clerked for Justice David Souter - that he would like to see a Supreme Court composed of nine David Souters.  That a relief that would be.  For one thing it would be a modest court - intellectually serious but not egomaniacal.   That he chose to retire rather tan die in office - unlike Antonin Scalaia and Ruth Ginsburg is evidence of that.

It prompted me to think that we have been so acculturated to polite discussion founded on the idea that all is debated in good faith that we miss just how far off the rails is the Supreme Court and what is called conservative thinking.  Even my comments on the Texas debacle are too restrained.

The CDC rent moratorium is a better example.  On first glance the syntactic construction of the federal statute in Alabama Realtors is plausible...expressio unius, etc.  But when I (the uncle of two mentally ill homeless 40 y.o. Californians) think about the context the Per Curiam opinion's outrageousness becomes clear.  The CDC has in mind the dangers of adding to the homeless, who will not get vaccinated, will not get tested, will not use masks.

Yet the Court sloughs off the context and treats an aid to construction of ambiguous language as a rule of substantive law.  The opening line of the Public Health Service Act is plain enough.  "The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases... "

The point at which the courts should begin is, as Eric suggests, the more competent and electorally responsible branches have made a choice.  Only in the plainest of circumstances should we interfere with that.

Rather than reciting Bickel's "the least dangerous branch" we should be trumpeting that the judiciary is "the least competent branch".  And that the national government has fulsome power to address the epidemic.  - GWC