Two days ago, Dan posted an entry by run75441 titled “SCOTUS Chastises Congress and the Executive Branch.” The post’s title wasn’t quite accurate; run’s post was about Chief Justice John Roberts’ annual state-of-the-judicial-branch report, in which he was writing in his capacity as administrative head of that branch, not in his actual judicial capacity, and not for the other justices.
Run (who didn’t title the post; Dan did) deeply criticized Roberts for bragging about the austerity of the federal courts in recent years, including his own court, which, he also bragged, had decided on 64 cases in its last term. That was down from, I think, 70 the term before, and the main reason for that reduction was that the ACA case consumed a full week of oral-argument slots– the full week at issue normally consisting of arguments in six–count ‘em, six!–cases; some full weeks consist of four arguments, leaving the justices slightly less exhausted than they are after the six-argument work weeks.
Roberts implied–he did not say so, expressly, but he did imply–that Congress and the White House take a cue from the justices and force the federal government to make do with less money. To which I suggest that the justices really lead by example, and get rid of their four-justices-apiece law clerks, who do most of their work for them and start doing their legally-mandated jobs themselves. After all, the federal government at least doesn’t pay salaries to congressional lobbyists–the equivalent of Supreme Court law clerks.
Anyway, I posted a comment to run’s post, and then asked Dan to add it as an update to run’s post, which he did. My comment said:
Run responded to my comment, and I then responded to his, writing:
There’s a whole lot more about this that can, and should, be said, and I plan to write in more depth about it. Which will make me the only one writing for public consumption about it; the general news media covers only “substantive” legal issues (“substantive” being another legal term of art; legal issues are either “substantive” or “procedural.”) And rarely covers even substantive issues that aren’t part of the culture wars debate. Which is really nice for the legal right, because their justices and judges can, and do, do just about anything they want, completely under the radar.
But for now, I’ll just add that the judicial right, lead on this by Kennedy and Clarence Thomas, conflate state sovereignty with freedom, but, at least regarding those two and their wingy three colleagues and some (but not all of their lower-court compadres), do so only with respect (pun most definitely intended) to state courts. To them, state legislative- and executive-branch actions (e.g., state statutes) are fair game for constitutional challenges, and they harbor no inhibition whatsoever about impinging upon state “sovereignty” in recognizing the Constitution’s Supremacy Clause when striking down as unconstitutional state statutes that the political right doesn’t care much for; Texas’s colleague-admissions affirmative action law, say. (Sit tight for the upcoming oral argument there in that case.) And their summary reversal of the Montana Supreme Court’s ruling late last year upholding the constitutionality of Montana’s longstanding campaign-finance statute is another example that comes (very) quickly to mind. My mind, anyway.
To be fair to Kennedy, and certainly to his credit, he–and he alone, among the Fab Five–does extend this principle to state statutes that liberals don’t like. Texas’s criminal anti-sodomy statute is one example, but there are other important ones as well.
But, in what appears to me to be nothing more than just old-fashioned professional courtesy, Kennedy effectively exempts state judicial branches from Supremacy Clause mandates to honor constitutional rights of individuals. And state courts violate individual procedural and substantive rights, in criminal cases and in certain types of civil cases, with absolute abandon, comfortable in the knowledge that they can. The result, far, far more often than not, is the very antithesis of freedom. Except in the Matter Hatter-esque language that the legal right has found so useful.
So, next time Kennedy or Thomas writes an opinion singing the praises of state sovereignty–by which they almost always just mean state-court sovereignty–as advancing “freedom,” ask them (rhetorically, of course; they won’t actually hear you unless you retain Paul Clement to speak to them for you, which was basically run75441’s point) whether they think that, say, German Jews in the mid- and late 1930s were freer because Germany was a sovereign state.
I will, anyway. Or maybe I’ll just ask the Mad Hatter. Orwell lives. These days, though, in this country it’s called “federalism.”
Occasionally, one of my AB posts goes viral (relatively speaking), racking up a couple thousand views on statcounter. This is one that I hope does. Actually, I hope it gets a million hits.
Yeah. A million hits would be good.
Is there such a thing as hitting the Supreme Court in effigy?