Tuesday Talk*: Is SCOTUS Up To The Task?

Putting aside whether you believe the Supreme Court of the United States is a bunch of Trump-loving partisan hacks or a more conservative court, but still one that prizes legal principle and integrity despite Justice Thomas’ RV, a secondary problem arises out of its decision staying the universal injunction in Trump v. CASA.

Bear in mind that the Court takes on a relative handful of cases, and even then tends to go no further than absolutely necessary to address the issue before the Court. What this means is that thousands of cases go unreviewed by the Supreme Court, and tens of thousand of issues go unresolved, left to some other day in the future that may never come. The latter is called judicial humility. The former is called laziness.

Even worse, the Supreme Court does not reach constitutional questions if a matter can be decided on another basis. While that may be a virtue in general, it means that a substantial constitutional question remains unresolved when a case can be decided on more idiosyncratic grounds, peculiar to the individual case and unhelpful to the broader questions that may have a significant impact on the law’s application to society at large.

Law prof Kate Shaw raises an interesting problem with this in light of the magnitude of Trump’s rule by Executive Order, and one that may well follow with future presidents who ignore legal norms to test the scope of authority. Remember, Trump won’t be president forever, and a president with whom you disagree may one day be in the position to use executive fiat to do things that make you sad.

But the power transfer that will result from this opinion is not only from the judiciary to the president, but also within the judiciary. That’s because the Supreme Court’s conservative majority also suggested that the Supreme Court, alone among the federal courts, can and will continue to provide uniform national answers to pressing legal questions, on both a preliminary basis and a final basis.

The court already commands outsize power within our constitutional order; this decision demonstrates a new degree of imperiousness, seeming to co-sign the Trump administration’s contempt for the lower courts while announcing that its own edicts will continue to command obedience and respect.

If, as the CASA case suggests, only the Supreme Court’s decisions govern the nation, such that the rulings of inferior courts are at best limited in scope by their jurisdiction or the named parties, this will require the Supreme Court to either take on all cases involving constitutional questions, and then rule on the constitutionality even if the case can be decided on a lesser basis, or unconstitutional actions will go undecided for large swathes of the nation.

Imagine a law held unconstitutional in some districts or circuits, but not others, that either hasn’t reached SCOTUS or goes insufficiently decided such that there remains serious questions that impact on millions of lives? What’s unconstitutional in the Ninth is totally fine in the Fifth. Say cops can engage in the seizure of “assault rifles” in California, but it was quite unconstitutional in Iowa. And the Supreme Court, well, they just haven’t gotten around to it yet, even though a year or more has elapsed.

The decision by the court’s conservative majority offers yet more evidence for the transformation of the Supreme Court. Though often cloaked in a language of neutrality and humility, the conservative majority’s actions — in the critical discretionary choices these justices have made about what cases to take, when to intervene and what interpretive methods to use — speak more clearly than its rhetoric about the court’s conception of its own role, which is neither neutral nor humble.

There is no right to appeal to the Supreme Court. Its docket is discretionary. Even if they up their game and take on 100 cases a year rather than 50, that leaves a lot of issues on the table that would have been addressed through the decisions and orders of lower courts in the past. Are the Supremes up to the task? Are we willing to wait, and wait, and wait, until the Supremes get around to it, if ever?

What happens to all those people who are the subjects of unconstitutional government actions in the meantime, some of whom will be deported, or have their guns seized, or have their funds cut, or their law firms shuttered, or have no one to pick their strawberries? If only the Supreme Court has the authority to enjoin a law as an unconstitutional excess of power, there will be a great many people and issues that remain undecided and cause irreparable harm in the process. When the issue affects you or yours, is it going to be as acceptable as when it only impacts your hated “illegals”?

*Tuesday Talk rules apply.