This is Joseph.
What is remarkable about the current US court hijinks is how they create legal uncertainty. It is not the case that every single issue is all bad. For example, Ken White notes that the recent decision requiring jury trials for the SEC and not allowing administrative judges is not all bad. He is right. But, there was a recent opinion not even allowing review of facts for an administrative judge in the immigration area. If the principle is the seventh amendment then why does it not apply to both cases?
Similarly, the recent opinion on Roe versus Wade suggests that the privacy right that the case rests on is not as solid it previously seemed. Now, if the law is not correct (a big "if") then one can see a court overturning it. We no longer apply Dred Scott vs Sandford, for example. But if the privacy right is not "well established" then it makes sense to wonder if other cases based on the same right are at risk. Spoiler alert, they are:
So when men—because it’s pretty much always men—lecture you about what red-state legislatures—which are pretty much always controlled by men—are not going to do when Dobbs comes down, it’s most likely because they believe you to be either stupid or fundamentally powerless or possibly both.
This is all called gaslighting, and it’s a tactic of bullies, thugs, and authoritarians everywhere. The same Wall Street Journal opinion page that promised on July 2, 2018, that the court wouldn’t overturn Roe is now actively trying to cudgel the court into overturning Roe. Spectacularly stupid men gloat about the end of women’s freedom and then turn around and deride women as hysterical for worrying publicly about their freedom. Gaslighting is very much the point. When people in power tell you the precise thing you are witnessing isn’t happening before your eyes, it is done with a purpose. They are confident that if you let yourself be mollified by all the soothing talk about how, sure, you may feel (incorrectly, they will add) like they misled you at their confirmation hearings, but they are emphatically not misleading you now, then they can amass more power and more credibility to do more freedom-restrictive things with impunity in the future.
This brings me to the other part of the recent fifth circuit opinion. You could have forced a jury trial for the SEC defendants based on the seventh amendment alone, and Ken White might well be right. But what is causing so much angst is that new ideas are being introduced that might have implications:
In sum, we agree with Petitioners that the SEC proceedings below were unconstitutional. The SEC’s judgment should be vacated for at least two reasons: (1) Petitioners were deprived of their Seventh Amendment right to a civil jury; and (2) Congress unconstitutionally delegated legislative power to the SEC by failing to give the SEC an intelligible principle by which to exercise the delegated power. We also hold that the statutory removal restrictions for SEC ALJs are unconstitutional, though we do not address whether vacating would be appropriate based on that defect alone.
So the first point is fine. I'd love to see it extended to immigration law and there is a complicated question of how this might work in practice, but it isn't necessarily bad. But there are two wrinkles here.
One, the last point, is the idea that administrative law judges have too much job protection seems to be an exceedingly odd position for judges with life tenure to take. Like with Chekhov's gun, it seems odd to make a major point of law in a case where they decide not to even decide if it applies to this case. Why is it there?
Two, the issue with power delegation is a potential problem for the entire administrative state. This principle is just crazy:
The idea behind the "non-delegation" doctrine -- it's a theory made up by judges -- is that if a decision is 'legislative' it has to be made only by Congress, and Congress can't give the President, the SEC, or anyone else the authority to make that decision
. . . To say that all actions are "legislative" if they have "the purpose and effect of altering the legal rights, duties and relations of persons . . . outside the legislative branch" is so ridiculously broad when you read it out of context!
If everything that affects legal rights outside the legislative branch is legislative, then, like, um... uh, every agency regulation would be legislative? Which is why we even call notice-and-comment regulations "legislative" rules to distinguish them from other agency actions . . .
So the crux of the issue with the modern court environment is that we see very broad powers being claimed by the judiciary at the individual judge level. Given the risk of "judge shopping" it is even more important to have a clear set of laws. What I think is happening that is very destructive to the rule of law is the legal uncertainty. I am old enough to remember when conservatives argued that a strong constitution and predictable legal system had market value, by making a country a better place to do business in. I think that is correct.
To go back to abortion for a moment, if justices had been less "it is settled law" at their confirmation hearings and in public, I think this would be less ground-shaking. If, all along, people had said "abortion is special among the privacy rights and has these legitimate open legal questions" then I might have been less in favor of their confirmation but would not have wondered where else this might do. For example, nobody has given an other than "settled law" defense of contraception, so why could not the same analysis follow? Is the only basis of these rights the whims of the legislature? This is the oppositive of stable and predictable.
So I think this is my concern with the current era of law. It hints at huge changes. The non-delegation doctrine is the end of the modern administrative state. Now we did have such a state once, but things like automobiles and telecommunication infrastructure have somewhat changed the world making it hard to go back. It is like those who suggest we return to being hunter-gatherers, without any hard questioning about the carrying capacity of the planet for this lifestyle.
So I think we are in a period of cautious concern about just what is happening with the legal system, and that isn't ideal for something that is supposed to be clear and predictable.
P.S. Mark points out that Matt Levine has some thoughts
