Sunday, September 30, 2018

The abortion law/environmental law connection

Much craziness over Kavanaugh. Separate from the recent controversy is his opinion on upholding settled precedent, wherein he pretends that Roe v. Wade and abortion rights are not under threat if he's seated. For those who don't know all the details, conservative but not-superconservative Justice Anthony Kennedy, who Kavanaugh would replace, provided the crucial fifth vote for Planned Parenthood v. Casey, which essentially reaffirmed/reinterpreted Roe v. Wade.

Judges, including Supreme Court justices, are supposed to rarely overturn precedent. Kavanaugh pretends there's a chance he won't overturn abortion rights.

We do know about his (and Gorsuch's) contempt for crucial aspects of environmental law, most importantly the Chevron Doctrine, which lets adminstrative technical experts interpret ambiguous statutory language instead of judges, like the language found in the Clean Air Act that forms the legal basis for regulating greenhouse gas emission.

Their approach of gradually neutering Chevron is a model for how they could limit abortion rights.

And one other thing - I've dug for the transcript of Kavanaugh's testimony two weeks ago and can't find complete transcripts, but I recall listening to him talk about how much better it would be for judges to interpret ambiguous statutory language than administrative experts. So the other thing is this - if the judiciary is politicized now, it's nothing compared to how politicized it will be with this power grab to control ambiguity. Kavanaugh will further send the judiciary down a poisoned well.

There is a partial solution, one that has bipartisan support - term limits for the Supreme Court to lower the stakes involved. The bipartisan support could make this constitutional amendment happen, if presidential nominees felt serious about it. I'd also add to that term limits for appellate judges, and a Senate 55-vote supermajority appointment requirement for presidential appointments in the second half of a presidential four-year term. I'd take what I could get.

And after 2020, if Dems control the White House and Congress, take back the Garland seat that Republicans stole, which would be done by adding two more seats to the Supreme Court.

12 comments:

David B Benson said...

Constitutional law professor Jonathan Turley at, I think, George Washington University encourages a much larger Supreme Court. I disremember his figure but 17 might be a good number. You might care to help enthuse all with the idea that bigger is better.

William Connolley said...

> I recall listening to him talk about how much better it would be for judges to interpret ambiguous statutory language than administrative experts

Do you? I'm doubtful. Certainly not in those words. I quote "Chevron deference precludes judges from exercising that judgment, forcing them to abandon what they believe is “the best reading of an ambiguous statute” in favor of an agency’s construction. Brand X, supra, at 983. It thus wrests from Courts the ultimate interpretative authority to “say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), and hands it over to the Executive" though that turns out to be Thomas. But within the system, that's correct: ultimate interpretative authority does lie with the courts (do you disagree?).

Also, are you sure that it is always the "adminstrative technical experts" who do the interpreting, unswayed by politics, their superiors, or special interests in any way?

> gradually neutering Chevron is a model for

You're not suggesting that Chevron comes into RvW, are you?

> stole, which would be done by adding two more

Seems reasonable.

Fernando Leanme said...

Chavez's assault in democracy began by writing a new constitution which was approved by 32% of registered voters due to low turnout. But that wasnt enough, later he increased the Supreme Court numbers, stuffed it with his guys, and the rest is history. Given what i know about the left, the similar approaches, techniques, and playbooks, it sure seems there's broad coordination and exchanges of ideas across borders.

Barton Paul Levenson said...

Fernando, not all constitutional changes are Venezuelan constitutional changes.

Fernando Leanme said...

Barton, the constitutional amendment sounds fine. Stuffing the supreme with ADDITIONAL friendly judges sure sounds like a Chavez move.

Phil Hays said...

So how is Brexit going?

Brian Schmidt said...

"Also, are you sure that it is always the "adminstrative technical experts" who do the interpreting, unswayed by politics, their superiors, or special interests in any way?"

No, they'd be swayed too, but at least they'd understand how the law affects the technical issues it's meant to affect.

"You're not suggesting that Chevron comes into RvW, are you?"

Not directly, but as a model blueprint of how they would gradually prune back RvW.

Tom said...

Hi Fernando, how are you these days?

Well, Venezuela may have adopted the idea of flexibility regarding the number of high court justices from the US. We have changed the number of sitting justices 6 times over the years...

Barton Paul Levenson said...

FL: Stuffing the supreme with ADDITIONAL friendly judges sure sounds like a Chavez move.

BPL: Or an FDR move, if you know your US history. But I imagine you think FDR equivalent to Chavez.

Fernando Leanme said...

Barton, the US Constitution has a clear weakness if the number of Supreme Court justices can be altered by those seeking political advantages. I would pass a constitutional amendment setting out the number of judges, the number of judges a president can nominate with a 51% majority of the Senate to no more than two, After the first two any additional nominees would require a 60% vote. While I'm at it I would set a 12 year term limit for judges who obtain less than 60% vote, and 24 years for those who get more than 60%. I would also limit senators to 18 years, congressmen to 12 years.

Phil Hays said...

And the term limits for the real powers in Washington, the lobbyists?

@whut said...

There is also an analogy to how scientists are forced to wait years, decades, or beyond to validate results of their predictive models. This is in the absence of controlled experiments, which can't be performed for climate or astronomy studies.

If there is any chance to cross-validate their models with data from TODAY, they will. There is no reason to wait for years and find out that the model is wrong.

What we should do with Kavanaugh is essentially cross-validation with his previous rulings. We cannot afford to wait for decades to find out what kind of mess he will get us into.