An ‘Imperial Supreme Court’ Asserts Its Power, Alarming Scholars - The New York Times

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. - John Marshall, C.J.

Marbury v. Madison (1803) - National Archives |

The Supreme Court does so much more than Marshall declared to be necessity two hundred years ago.  In the past year it has solidified what it calls the Major Questions Doctrine - which demands that when the Executive branch seeks to do something "major" it will be permitted to do so only if the Congress has spoken with "particular clarity".  This usurpation of the power of the Congress and the President and executive branch led Stanford law professor Mark Lemley to label it The Imperial Supreme Court..

And now there's data:

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.

Also notable is the Court's injudicious eagerness to exercise its equitable discretion without waiting for couts below; its haste to declare a stay appropriate because on an incomplete record the majority concludes that a party is likely (or not) to prevail in the end.   Remarkable is the surging practice of granting certiorari before judgment - a procedure last used in 2004, but fifteen times since 2019.

Whatever happened to denunciations of "judicial activism"?  That was always a polemical, not descriptive charge. It stood for objection to the expansive decisions of the 1954 to 1980 when Ronald Reagan took office. During his two terms he elevated William Rehnquist to Chief Justice, and  nominated Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy.  O'Connor and Kennedy proved unreliable on  the issues of abortion and gay rights.  It was in the Trump years that Associate Justices Gorsuch, Kavanaugh and Barrett gave Justice Alito and Thomas they the votes they needed.  This year in Dobbs and NY State Rifle & Pistol Clubs they swept off the books Roe v. Wade, and state limitations on the right to bear arms.

- GWC 12/19/22

* Is the U.S. Supreme Court a Reliable Backstop for an Overreaching U.S. President? Maybe, but is an Overreaching (Partisan) Court Worse? Rebecca L. Brown, University of Southern California Lee Epstein. University of Southern California

An ‘Imperial Supreme Court’ Asserts Its Power, Alarming Scholars - The New York Times

By Adam Liptak

Dec. 19, 2022, 5:00 a.m. ET

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.

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