This week, President Biden introduced his plan for “reforming” the Supreme Court, featuring an unconstitutional proposal for imposing term limits on justices. This development follows years of relentless leftist attacks and unfair criticism towards the constitutionalist justices on the Supreme Court, particularly Clarence Thomas and Samuel Alito.
President Biden claims these “reforms” are necessary because “what is happening now (on the Supreme Court)… undermines the public’s confidence in recent court decisions” and has negatively impacted “our personal freedoms.” In reality, the political left simply doesn’t like that recent rulings have held up the Constitution’s limits on the power of government.
Biden’s hypocrisy on “personal freedoms” is most evident in the recent dissents by the court’s left wing — Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson. All betray a lack of concern for upholding the Constitution’s protections against an oppressive central government and abusive prosecutors.
In SEC v. Jarkesy, the Securities and Exchange Commission investigated investment adviser George Jarkesy Jr. and his investment advisor firm, claiming he had committed investment fraud. The SEC then prosecuted him in-house, not in a court of law, using an administrative law “judge” — an SEC employee — who, surprise, surprise, found Jarkesy guilty and imposed a $300,000 fine.
Jarkesy challenged this procedure, arguing this administrative prosecution violated his Seventh Amendment right to a jury trial in a court of law. A majority of the Supreme Court agreed — that is, the six justices who are constantly being attacked by President Biden and the mainstream media agreed.
Yet Kagan, Sotomayor, and Jackson saw no problem with, as Chief Justice John Roberts wrote in the majority opinion, the bureaucrats in an executive branch agency assuming the “roles of prosecutor, judge, and jury.” The dissenters, said Roberts, would give the government the authority “to penalize citizens without a jury, without an independent judge, and under procedures foreign to our courts.” It was to prevent such violations of “individual liberty” that the Constitution built “high walls and clear distinctions.”
In Sotomayor’s disturbing dissent, which was joined by Kagan and Jackson, she wrote she would knock down those high walls. In her view, nothing in the Constitution “requires the Government to seek civil penalties” in such a securities fraud case “before a jury in federal court.”
That view is a recipe for a despotic government that can abuse its law enforcement authority to prosecute members of the public without the due process of law. It is a frightening view of unchecked government power that impacts “personal freedoms” in a way that Biden approves.
The same misguided view of government is apparent in these justices’ dissent in Loper Bright Enterprises v. Raimondo, which tossed out the so-called Chevron doctrine. Chevron was a regrettable 1984 decision in which the Supreme Court said courts should generally “defer” to federal agencies when interpreting the statutes those agencies administer, at least so long as the statute is “ambiguous” and the agency’s interpretation is reasonable, even if the court decides that it is not the best interpretation of the statute in question.
In other words, if there was any question about whether an agency had gone beyond the power granted to it by a federal statute, federal courts should not question an agency’s permissive interpretation of the extent of its own authority. Over time, this resulted in federal bureaucrats having carte blanche to do almost anything they wanted.
It also flew in the face of Chief Justice John Marshall’s famous ruling in Marbury v. Madison that “it is emphatically the province and the duty of the judicial department to say what the law is,” as well as Congress’s judgment in the Administrative Procedure Act that courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and may not defer to an agency interpretation of the law simply because a statute is ambiguous.
In Loper Bright, the National Marine Fisheries Service used that “interpretation” power to claim it could require commercial fishermen to not only carry NMFS observers on their boats, but to actually pay the observers’ salaries, even though there was no such provision giving the NMFS that power in the authorizing statute.
As Roberts said in the majority opinion, this deferral to federal agencies was a “fundamental disruption of our separation of powers” in the Constitution. The “Founders envisioned that ‘the courts [would] check the Executive by applying the correct interpretation of the law.’” The Chevron doctrine had stripped the “courts of judicial power by simultaneously increasing the power of executive agencies.”
Yet once again, the three dissenters, led this time by Kagan, saw nothing wrong with giving executive branch agencies such power. According to her, when Congress has “left an ambiguity or gap” in a statute, the courts should leave it up to the swarms of unelected, unaccountable bureaucrats to decide how much power they have, and how far they can go, to regulate the lives, professions, and property of the American public and their businesses.
Kagan saw nothing wrong with “sen[ding] hither swarms of Officers to harass our people, and eat out their substance,” to cite one of the complaints about the English monarchy in the Declaration of Independence.
Of course, one of the areas the leftist justices don’t mind curbing government is when giving local governments the ability to try to clean up their cities and make parks and other public places safe for families and children. In a revealing dissent in City of Grants Pass v. Johnson, Sotomayor, again joined by Kagan and Jackson, bizarrely argued that local ordinances against camping in public parks violate the Eighth Amendment, which prohibits cruel and unusual punishment.
The Eighth Amendment was put into the Bill of Rights not to tie the hands of government officials trying to address a vexing problem, but to prevent, as Justice Neil Gorsuch points out in the majority opinion, “certain barbaric punishments like ‘disemboweling, quartering, public dissection, and burning alive.’” Anti-camping ordinances are a key part of solving the homelessness problem that is overwhelming so many cities across the country. That includes places like San Francisco, which in its amicus brief in the case related that it has thousands of individuals sleeping in “tents and makeshift structures” in its public places.
As Gorsuch says, potential solutions to that problem need to be resolved through the democratic process, not by federal judges. The Eighth Amendment “does not authorize federal judges to wrest those [democratic] rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.”
Adopting the leftist bloc’s view would turn judges into super-legislators with veto authority over local laws and ordinances they don’t like under the guise of constitutional interpretation. That is judicial activism, pure and simple. Accordingly, when Joe Biden claims that we “stand in a breach” and must defend democracy against the conservative appointees on the Supreme Court, it is to prevent them from further reigning in these kinds of unchecked government powers.
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