Constitution Day Panel Examines Power of the Supreme Court and Judicial Supremacy Run Amok
The current state of the Supreme Court and the recent aggrandizement of its judicial power was the topic of Brooklyn Law School’s Constitution Day program, titled “Judicial Supremacy Run Amok.”
The annual program, which was held on Sept. 18, commemorates the anniversary of the drafting and signing of the U.S. Constitution and features a panel discussion by Brooklyn Law’s constitutional law experts. This year’s panel—William Araiza, Stanley A. August Professor of Law; Susan Herman, Ruth Bader Ginsburg Professor of Law; and Alice Ristroph, Les Fagen Professor of Law—examined the impact and implications of several recent high-profile high court decisions.
“These decisions have overturned precedents or otherwise very significantly rethought precedents defining executive power, congressional power, civil liberties, and more, in ways that have brought into serious question whether judicial power has now become a source of stability in the United States or a challenge,” said President and Joseph Crea Dean David D. Meyer, in his welcoming remarks.
Herman critiqued the justices’ professed political neutrality of “just calling balls and strikes.” She noted the results in three cases favoring former president Donald Trump, and then explained how the court has used its non-neutral choice of an “original public meaning” judicial philosophy to justify decisions limiting abortion rights and inflating the rights of gun owners.
“This approach to constitutional interpretation,” Herman said, “erases the democratization of the country. It evaluates the validity of anti-abortion laws and gun control laws by deferring to statutes passed before women even had the right to vote.” Herman added that the Court “has also been throwing off the guardrails on anything that would constrain its own power, such as the doctrine of stare decisis.”
Araiza discussed the diminishment of agency power in cases such as Loper Bright Enterprises v. Raimondo, which reversed Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., thereby reducing the judicial deference to agency rulings when agencies interpret organic or authorizing statutes.
“In Loper Bright, the court went all the way, and they got rid of Chevron entirely,” Araiza said. “Now, when an agency interprets the statute, and that interpretation is challenged in court, the court simply figures out for itself what the statute means. They will take advice and suggestions from agencies, just like from any litigants, and of course the agency’s suggestions will presumably carry some weight because they are, after all, still the experts. But it's fundamentally the court that is making the decision.”
Ristroph focused on the Supreme Court’s ruling on presidential immunity from federal prosecution for election interference, in the case of Trump v. United States. “In that opinion, said Ristroph, “the Supreme Court found a fair degree of presidential immunity from criminal prosecution for official acts, for actions that a president takes within the scope of responsibilities as president…but not for unofficial acts. The exact parameters of that are not necessarily clear yet, but there is in this opinion, support for broad presidential immunity and a very broad view of presidential power.” She cited Chief Justice Roberts’ words in the majority opinion that “the president occupies a unique position in the constitutional scheme as the only person who alone composes a branch of government.”
A Q&A followed the panel, which touched on the difficulty in creating measures to reform the court because of its self-monitoring, the role of Article I courts in the future, the aftermath of the Loper Bright decision (“a rigidification of federal law,” said Araiza), and the greater skepticism with which today’s students view Supreme Court decisions.
Photos from the event are here.