Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh.

According to Mike Pence, who ran for vice president in 2016, “Donald Trump will appoint men and women who will strictly construe the Constitution and not legislate from the bench.” Republicans have frequently referred to “legislate from the bench” in their speeches. For instance, George W. Bush made use of it when appointing John Roberts to the Supreme Court for the first time. It’s a shorthand for denouncing what detractors refer to as “judicial activism,” a charge levelled at judges who they claim abuse their authority and intervene in issues that are better and more frequently handled by elected officials.

And yet, “judicial activism” and “legislating from the bench” are two terms that appropriately define the Supreme Court’s acts, including those of its three Trump appointments.

The latest instance is the court’s judgement to invalidate President Joe Biden’s student loan forgiveness programme. The 2003 Higher Education Relief Opportunities for Students Act’s interpretation by the Biden administration is the topic at hand. In accordance with the legislation, the secretary of education “may waive or modify any statutory or regulatory provision applicable to the student financial assistance programmes… as the Secretary deems necessary in connection with a war or other military operation or national emergency.” The White House proposed a scheme to pardon $10,000 because to the Covid-19 epidemic…. Americans making less than $125,000 annually in student debt, and up to $20,000 for those with unpaid Pell grants.

Justice Elena Kagan stated in her dissent that the court overstepped its bounds even before considering the case. “The plaintiffs in this case,” Kagan said, “are six States that have no personal stake in the loan forgiveness arrangement. In contrast to cases and conflicts, the Court behaves as though it is the arbitrator of political and policy issues.

In this instance, a bill approved by Congress gave the secretary of education the power to erase student loans. According to how the secretary read the legislation, he was permitted to waive a specific amount of student debt. Instead of giving the executive branch the benefit of the doubt or enabling Congress and the White House to work out a settlement, the court imposed its own judgement and ordered that 45 million Americans shouldnot be eligible for a benefit because, as Kagan described it, the court’s conservative members deemed the amount of help to be too “significant.”

Even if one agrees with this judgement, how can one’s objection to “legislating from the bench” be consistent with such a judgement?

A recurrent and unsettling tendency in the Roberts Court is the elevation of judges’ opinions above those of the people’s elected officials. Even though the Clear Air Act authorised such action, the court last year in West Virginia v. EPA barred a significant rule to clean up power plants for climate change. In the course of doing so, the court established a novel and entirely original theory known as the “major questions doctrine,” which enables the court to impose limitations on the acts of a regulatory body in situations where a rule has “powers of vast economic and political significance.”

How does the court determine something has “vast economic and political significance” and how does this support its justification for interfering with choices that are typically made by elected officials? Your hunch is just as valid as mine. (Brett Kavanaugh acknowledged this before being confirmed to the Supreme Court: “Determining whether a rule constitutes a major rule sometimes has a bit of a ‘know it when you see it’ quality.”) On this court, however, it frequently seems to rely on whose party is in power in the White House. In fact, the so-called Muslim ban was confirmed by the conservative majority in 2018 in what the former acting solicitor general Neil Katyal has dubbed “very-near-blind-deference” to the executive branch. Deference is therefore greater when a Republican holds the White House and less so when a Democrat does.

In decisions made by the conservative justices of the Supreme Court, legislation from the bench has frequently occurred. Early in 2022, a conservative majority overruled a requirement for the Covid vaccination on the grounds that the Occupational Safety Hazard Administration had overstepped its bounds in attempting to safeguard employees against Covid.

In New York State Rifle & Pistol Association Inc. v. Bruen, the court declared that any gun restriction must be compatible with gun regulations that were in place when the Constitution was being written in the late 18th century, and thus overturned a New York statute governing concealed carry licences. In essence, the court was removing the power from elected politicians to create gun control laws. Instead, it gave it up to unelected judges who are now making decisions on the legitimacy of gun laws across the nation based on statutes written by individuals who are 200 years old and older rather than by elected officials or the will of the people.

Even further back, in Shelby County v. Holder, the court reinterpreted the Voting Rights Act, a congressionally passed and repeatedly renewed law, by developing the “equal dignity of the states” doctrine to support a judgement that invalidated a significant piece of voting rights legislation.

What is one to deal with the blatant hypocrisy, even if one wants to justify these rulings on grounds of jurisprudence? A generation of Republican elected officials and legal experts formerly vehemently opposed the kind of judicial activism that the court has vigorously supported in virtually all of these cases. It would appear that judicial activism is only an issue for conservatives when liberals engage in it. If not, it’s not only acceptable but downright admirable. You either believe in judicial restraint or you don’t, said Jonathan Zasloff, a law professor at UCLA School of Law. The court’s decision-making process reminds one of “the Iran model, where legislation is passed and then approved or disapproved by the Supreme Council of Guardians.”

Roberts bemoaned that “simply because people disagree with an opinion is not a basis for criticising the legitimacy of the court” in a speech from last year. But how else can legal experts react to a court that appears to base its judgements on political or ideological considerations before adding the legal basis later? Why would regular Americans continue to perceive the nation’s most significant judicial body as anything other than politicians in black robes when there is no rhyme or sense to the court’s decision-making? Roberts and his five conservative colleagues just need to look in the mirror if they want to understand why the legitimacy of the court is being questioned.

Leave a Reply

Your email address will not be published. Required fields are marked *