by Matthew G. Andersson
Progressives are trying to chip away at how the Supreme Court works, in order to advantage themselves
It’s important to keep in mind that the Biden administration still wants to pack the Supreme Court, but they also want to compress it, and now more than ever, after it found itself on the losing side of several rulings. By so doing, they seek to change the nature of American government.
Packing the Court, or adding more justices beyond the current nine, is a progressive policy going back at least to Roosevelt and the New Deal. If the DNC can run up the number of justices on the Court, then it can cement a near-permanent majority, using the Court to legislate.
But there’s much more involved. And in the meantime, progressives will try to chip away at how the Court works, in order to advantage themselves.
One way to undermine the Court’s methods is by the internal administration of its docket, and how it decides what cases to hear. This is known as “certiorari,” which is merely the back and forth among the judges as to which cases they think are qualified for a hearing. If four of the nine justices agree, they will issue a “writ of certiorari” which is an order to the lower court for records of the case, in order to review them. The Supreme Court hears about 80 cases a year. Most petitions are denied (which they should be, as they belong somewhere else).
An example of a procedural strategy that the Left is pursuing comes from Stanford Law School professor Jeffrey L. Fisher who co-directs its Supreme Court Litigation Clinic. He argues that the number of justices required to form a “majority” in order to decide which cases to choose from, be reduced to three from four. This would increase the number of cases heard, but it would also elevate into the Court, many disputes more appropriate to the states, other branches, or forums. It would turn the SCOTUS into an appeal mill.
This obviously accommodates the three activist justices -- Sotomayor, Kagan, and Jackson -- and gives them a way to assert their ideological agendas, pushing the Court into a national political arena (even if they subsequently lose a case, as this creates division and builds their political solidarity). Interestingly, Fisher recommends that Congress intervene into the Court’s management, and change the rule of four, by overruling the Court. By what authority is not clear.
Apparently lost on Fisher is the irony that his like-minded colleagues were just publicly arguing against such legislative authority which they called “dangerous” regarding elections.
Fisher tells readers that by giving a smaller group in the Court such weight, it would rescue legal injustices made by lower courts: “For the court to reverse a lower court decision refusing to honor a civil liberty, the case first has to be put on its docket. And that seems no longer to be happening in cases involving established rights favored by the liberal wing of the court.”
Fisher engages in a logical fallacy by implying that lower court rulings are ipso facto unjust, and are “refusals” rather than judgements. This often reflects a belief in a general “disparate impact” that they think should have been recognized, based on race, for example, or any number of special interests -- that groups and issues the liberal justices favor, deserve another hearing over others, even if the prior lower court ruling was legally correct. This is a curious distortion of the law, and underscores how the progressive Left will adjust legal theories to suit their objectives ex ante or ex post facto; that is, they will make new rules to create new controversies, or they will reinterpret rules after the fact, if they don’t like the results.
Some of the distortion in both law and government that stems from political progressives is their inclination to elevate law into public policy, and then public policy into government control that is permeated across an administrative, caretaker state. The Bill of Rights and the Constitution itself are, for progressives, not enough. Indeed, they stand in their way as a bottom-up, natural- law source of individual sovereignty. John Locke described this as “the executive power of the law of nature.”
What progressives seek instead, is top-down rule from a merged judiciary-political party that issues policy by decree, and has been delinked from American constitutional law. It is a doctrine based in centralized single authority, and in this way, reflects their ideological role model: China’s CCP. Packing the Court with partisans, and modifying Court rules to favor them, moves the Court inexorably toward a committee.
Matthew G. Andersson is the author of the upcoming book Legally Blind. A former CEO, he has been featured in the Wall Street Journal, the Financial Times and by the National Academy of Sciences in law and economics. He has testified before the U.S. Senate and is a graduate of the University of Chicago.
Source: https://www.americanthinker.com/articles/2023/07/subverting_the_court.html
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