“When asked to share their candid thoughts about the Democrats’ chances of hanging onto their House majority in the coming election, party strategists often use words that cannot be printed in a family newsletter,” the New York Times reports.

“But a brighter picture is coming together for Democrats on the Senate side. There, Republicans are assembling what one top strategist laughingly described as an ‘island of misfit toys’ — a motley collection of candidates the Democratic Party hopes to portray as out of the mainstream on policy, personally compromised and too cozy with Donald Trump.”

Save to Favorites

Over the past year, the Supreme Court decided three important cases concerning the major questions doctrine. The third decision, West Virginia v. EPA, was decided on the regular docket. But the first two cases, like most COVID cases, were rendered on the shadow docket.

First, Alabama Association of Realtors v. HHS declared unlawful the eviction moratorium. Second, NFIB v. OSHA declared unlawful the vaccine/testing mandate. Both unsigned opinions relied on the major questions doctrine. At the time, I wrote that the Court has treated these shadow docket cases as precedential.

Now, we have West Virginia v. EPA. And the Court cites the Alabama case as part of the major questions canon. Here, the Court invokes Alabama and Brown & Williamson in the same breath:

Such cases have arisen from all corners of the administrative state. In Brown & Williamson, for instance, the Food and Drug Administration claimed that its authority over “drugs” and “devices” included the power to regulate, and even ban, tobacco products. Id., at 126–127. We rejected that “expansive construction of the statute,” concluding that “Congress could not have intended to delegate”such a sweeping and consequential authority “in so cryptic a fashion.” Id., at 160. In Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 3), we concluded that the Centers for Disease Control and Prevention could not, under its authority to adopt measures “necessary to prevent the . . . spread of ” disease, institute a nationwide eviction moratorium in response to the COVID–19 pandemic. We found the statute’s language a “wafer-thin reed” on which to rest such a measure, given “the sheer scope of the CDC’s claimed authority,” its “unprecedented” nature, and the fact that Congress had failed to extend the moratorium afterpreviously having done so. Id., at ___–___ (slip op., at 6–8).

And here, the Court lists Alabama in a string cite with Brown & Williamson and Gonzales v. Oregon:

And the Agency’s discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself. Brown & Williamson, 529 U. S., at 159–160; Gonzales, 546 U. S., at 267–268; Alabama Assn., 594 U. S., at ___, ___ (slip op., at 2, 8). 

The Court also cites NFIB v. OSHA in the same passage as Gonzales v. Oregon:

Similar considerations informed our recent decision invalidating the Occupational Safety and Health Administration’s mandate that “84 million Americans . . . either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense.” National Federation of Independent Business v. Occupational Safety and Health Administration, 595 U. S. ___, ___ (2022) (per curiam) (slip op., at 5). We found it “telling that OSHA,in its half century of existence,” had never relied on its authority to regulate occupational hazards to impose such aremarkable measure. Id., at ___ (slip op., at 8). 

By contrast, Fulton, quite deliberately did not cite Tandom v. Newsom or Roman Catholic Diocese.

I think the Court is signaling that a published decision with some analysis should be treated as precedential, even if rendered in the absence of full briefing and oral argument. Relatedly, Judge Trevor McFadden and Vetan Kapoor wrote a helpful article summarizing whether an emergency stay order is precedential.

While the Supreme Court of the United States (SCOTUS) has come under increasing scrutiny–and earned mounting disapproval and mistrust–because of a host of recent rulings, the July 4th mass shooting in Highland Park, Illinois should, sadly but hopefully, call into question not just any one of these specific rulings, but their approach and method to Constitutional law itself.

The concern I want to raise is with a more generalized and thoroughgoing approach of the Supreme Court to the law and the Constitution itself—to reading it, to interpreting it, and, most importantly, to understanding its relationship to serving the lives of Americans.

The approach I’m talking about is one of bad faith and one that is disarmingly anti-intellectual–in addition to being absolutely lethal for Americans, as the July 4th shooting in Highland Park makes clear, demonstrating SCOTUS’s supreme disregard for American lives.

To explain this point, let’s start with Justice Samuel Alito’s attack on Justice Stephen Breyer’s dissent in the court’s recent ruling striking down New York’s concealed carry gun law, in which Justice Clarence Thomas’ majority opinion made it much more difficult to regulate the possession of firearms going forward, according to Justice Stephen Breyer.

Alito expressed outrage in the concurrence he wrote supporting Thomas’ majority opinion, accusing Breyer of writing and arguing beyond the scope of the case in referencing the epidemic gun violence and killing in America.

“Much of the dissent seems designed to obscure the specific question that the Court has decided,” he wrote, continuing, “That is all we decide. Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun.”

He excoriated Breyer’s dissent, writing “It is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section.”

Most pointedly, he asks, “Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years?”

Advertisement

Breyer’s first line does reference the fact that in 2020, 45,222 Americans were killed by firearms.

But somehow, in Alito’s mind, this fact that links the largely unregulated proliferation of gun ownership to tens of thousands of murders is not relevant?!?

God forbid, I guess, that the laws we craft actually respond to the problems of the world in which we live!

As Jesus reminded the Pharisees in the gospel according to Mark, the Sabbath was made for man, not man for the Sabbath.

That is, laws are supposed to work for the benefit of human life, for those of living within the social world our legal system regulates.

Of course, Thomas in his majority opinion in this particular case and Alito in his decision overturning Roe v. Wade both relied on the absolutely invented principle that for a law to have validity it must be rooted in the history and traditions of the nation, meaning, as far as one can tell, that if one can’t find legal precedent dating back before the mid-nineteenth century, well, then, we simply can’t create a new law.

The July 4th murderous shooting, of course, underlines how deeply embedded gun violence and, well, murder, are rooted in the history and tradition of our country.

Rather than assess our history and re-think traditions that are unhealthy, indeed lethal, for us, SCOTUS, lead by the illogical minds of Alito and Thomas, use tradition to validate laws and decisions that are harmful to–deadly for–Americans.

In their view, we don’t look at the conditions of contemporary reality as we make law to regulate and support human life.

They refuse to look at how gun violence and the easy access Americans have to assault weapons put American lives in danger.

And yet, Alito attacked the justices who dissented from his overturning of Roe v. Wade, writing, “The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life.”

Advertisement

I’m quite sure the rights of potential lives are not discussed in the Constitution.

Yet these justices overlook the reality of life in American now.

Their attempt to invent a reality—or ignore reality—as the basis for their decisions recalls Chief Justice John Roberts’ decision in 2013 gutting the Voting Rights Act.  He played amateur sociologist and professional denier of reality in basically insisting that racism was no longer an issue in the United States, so that since the conditions of racism that made the Voting Rights Act necessary didn’t exist, the conditions of the act didn’t need to exist either.

Roberts’ ruling, of course, prompted the late Justice Ruth Bader Ginsburg to compare the decision to one throwing away one’s umbrella in a rainstorm because one is not getting wet.

Alito and Thomas, like Roberts, ignore reality, and even worse they conceptualizes law-making, as we see in Alito’s lashing out at Breyer, as an act divorced from the concrete reality in which live.

Not representing, and not crafting law to serve, those living in our contemporary reality is not just a big problem, it’s a form of aiding and abetting murder.