Letters We Wish We'd Written Dept. -- Overreach

 

In today's Washington Post:

According to George F. Will’s July 4 op-ed, “From Barrett, a finger wag to executive overreach,” the “major questions doctrine,” as articulated by Justice Amy Coney Barrett in the student loan case, “has emerged organically from judicial reasoning about executive overreaching that is encouraged by Congress underperforming its duty to be clear.” But Mr. Will ignored that the doctrine substitutes extreme judicial overreach for purported executive branch excesses. The Supreme Court’s right-wing majority — including Justice Barrett — has yet to articulate any clear, objective standards for determining when a rule is “major” enough to trigger the intense judicial skepticism (if not outright result-orientation) the doctrine prescribes. Accordingly, it gives license to any five members of the court to jettison any environmental, public health or consumer protection regulations with which they disagree simply by declaring them “major” and then saying that Congress did not speak with ideal specificity — even when the plain language of a statute encompasses the executive branch action.

At least when the executive allegedly overreaches in implementing a law, there is a fundamental check and balance built into the constitutional framework: elections. But when the life-tenured, unelected members of the Supreme Court do so, it is well nigh impossible for corrective action to be taken — especially in view of the congressional dysfunction to which Mr. Will alluded. Far from restoring “constitutional equilibrium” (as Mr. Will asserted), the major questions doctrine seriously subverts that balance by giving the least representative branch of government extraordinary power to dictate (or nullify) public policy.

Eric Glitzenstein, Washington

 

The Republican Supreme Court's rulings since the hurried installation of Amy Coney Barrett on the Court prior to the 2020 election have flowed from a desire, as some have put it, to overturn the 20th Century.  To the Republican supermajority, there's no such thing as precedent to stand in their way, and no such thing as establishing "standing" when it comes to accepting a case.  To paraphrase the letter writer, the least representative branch of government has extraordinary power to dictate or nullify public policy -- to which we would add "public policy that is often supported by the majority of Americans."  

We hope and believe the backlash to this rogue, radical Republican court will manifest itself in the 2024 election.  There are early signs that one cohort in particular -- young voters -- are being energized by recent Republican Supreme Court decisions and intend to take it out on Republican candidates next year.  We already know the Dobbs decision backlash helped Democrats in the 2022 off- year elections. That decision, stripping women of their reproductive freedom, was just the start of the damage the Republican Supreme Court has done to our country.  As injury piles on injury, the motivation grows to boot the radicals from office so we can have true, necessary reform of the Republican Supreme Court.