The New Judicial Power Grab
19 Pages Posted: 10 Jan 2023 Last revised: 19 Apr 2023
Date Written: January 10, 2023
Abstract
The judges are out of control. While judicial institution-building is nothing new in American history, the John Roberts-helmed judiciary has engaged in a remarkable power grab. This self-aggrandizement has not received the attention it deserves for at least two reasons: first, scholarly and public discourse about the courts, taking its cues from judges' own self-presentation, remains overly focused on doctrine and insufficiently focused on the courts as institutions. Second, and relatedly, the true scope of the phenomenon becomes apparent only when one looks across doctrines, rather than within them.
Accordingly, this essay, prepared for the St. Louis University School of Law's 2022 Childress Symposium, considers the new judicial power grab in three discrete areas: election law, congressional oversight, and administrative law. The essay focuses not only on the outcomes of cases, but also on the remarkably dismissive rhetoric that judges use toward other institutional actors, combined with rhetoric meant to obfuscate the judiciary's institutional character and present it as a disembodied, neutral voice for an apolitical law. The result is a judiciary that is currently in the process of amassing a striking amount of power at the expense of other governing institutions.
Keywords: judicial power, separation of powers, imperial judiciary, election law, congressional oversight, administrative law, major questions doctrine
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