The rulings dribble out like water from a leaky barrel. This week’s Economist has a good summary that puts the drift in perspective. The current orientation is nothing new. Overall the Supreme Court’s opinions have had their peaks and valleys. It wasn’t all Cardozo, Brandeis or Souter. Roosevelt considered adding Justices because the Court at the time threatened to eviscerate New Deal programs that seemed imperative to the resurrection of the economy. An earlier Court legitimized segregation, “separate and unequal”, a partial rollback of the Emancipation of slaves.
The current conservative majority seems committed to shifting more discretionary power to the Executive at the expense of Congress and even the Judiciary. As a lawyer with a background of government it is painful to see the ultimate arbiters of what is lawful, condone and empower the pattern of contempt for the law manifested by the current administration. Perhaps the most blatant free pass is Trump v CASA in which the Court nullified the capacity of the lower courts to issue injunctions that would apply to the whole country.
The Court has avoided articulating the justification for its action by deploying the “emergency” docket. One of the goofiest decisions cited by the Economist is the acquiescence of the President’s sacking of two agency heads without cause, ignoring a previous Supreme Court decision and the law. The articulated rationalization is that the government “faces greater risk of harm” “than the removed officer”. What about the law preventing removal without cause?
To be sure some of the time the three more moderate conservatives have sided with the three Democrat appointees. But the scale and impact of these are dwarfed by some of the conservative decisions.