Law

Is Congress Entitled to the Supreme Court's Deference?

SCOTUS is the least democratic branch. Is that a bad thing?

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University of California Berkeley law professor Jonathan Gould and Columbia University law professor Olatunde C.A. Johnson have raised the alarm about what they see as a scary new threat in American politics. "The past decade," they write in The Atlantic, "has witnessed a dangerous trend: a Supreme Court that expresses deep suspicion of Congress's competence and motives."

Gould and Johnson point to a few recent cases as evidence, including Seila Law v. Consumer Financial Protection Bureau (2020), in which the Court declared the single-director structure of the congressionally created Consumer Financial Protection Bureau to be unconstitutional. According to their argument, the Supreme Court has no business second-guessing these sorts of statutory and regulatory schemes designed by Congress. They also fault the Court for acting in a way that undermines the ostensible will of the majority. "Congress's members are far more representative of the American people than are the Supreme Court's nine justices," they write. "In failing to trust Congress, the Court gives greater weight to its own judgment than that of the more democratically accountable Congress."

Surprisingly, they fail to mention United States v. Windsor (2013), the landmark gay rights ruling in which the Supreme Court invalidated a central component of the 1996 Defense of Marriage Act, a federal law that was duly passed by Congress with broad bipartisan support. It seems to me that any principled case for greater judicial deference to "democratically accountable" lawmakers would necessarily also have to find fault with the Court's decidedly non-majoritarian approach in Windsor. Perhaps Gould and Johnson will clarify that they oppose Windsor too.

Gould and Johnson are also worried about the jurisprudence of Justice Neil Gorsuch. Specifically, they fret about Gorsuch's "influential dissent" in Gundy v. United States (2019), in which he "sought to limit Congress's power to delegate authority to federal agencies."

At issue in Gundy was the Sex Offender Registration and Notification Act of 2006 (SORNA), a federal law which, among other things, requires convicted sex offenders to register, check in periodically in person, and share personal information with the authorities.

The law also said this: "The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter." In other words, Congress essentially gave the attorney general free rein when it came to deciding the fate of the estimated 500,000 individuals whose convictions predate SORNA's passage. Gorsuch's dissent in Gundy faulted his colleagues in the majority for letting Congress "hand off to the nation's chief prosecutor the power to write his own criminal code."

Gould and Johnson may not like the sound of it, but if Gorsuch's dissent had carried the day, Gundy would have gone down as a win for criminal justice reform advocates, who have long warned about the dangers of letting law enforcement officials define the scope of their own powers.

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  1. “The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter.”

    Isn’t that a blatantly unconstitutional ex post facto law?

    1. No more unconstitutional than the registry itself, which is essentially a life-time sentence for a crime that carries a much lesser penalty.

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    2. Every bit as constitutional as every ‘common sense gun control’ law ever upheld.

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  2. I think we the people can fix this by not electing idiots to Congress.

    1. Who are you going find smart people that are stupid enough to run for Congress?

      1. That deserves an honorable mention for best retort du jour

        1. Nonsense. It deserves first place!

      2. We’re in a society where everyone thinks getting paid to stay home and do nothing is a good idea. One could argue that the truly smart only work as much as needed to accomplish their goals, so staying home and collecting a check is the smartest move you could make if you’re not the ambitious type.

        Well, an even smarter person would realize that you can make 6 figures a year to do nothing at all if you can get elected to Congress. It’s like being unemployed, except you’re much better paid and a bunch of rubes respect you for it.

      3. Libertarians know the system is rigged since the 1971 Anti-libertarian Law. So running for office on the LP ticket entails no risk of actually being thrust into office with evil companions. But the spoiler votes cast for the platform scare the daylights out of the looter kleptocracy and cause them to change policy and laws. This is win-win Winning!

    2. I vote libertarian. That USED to mean voting against idiots.

  3. I’m sure Gould and Johnson had the same reservations about Brown v Board of Education regarding the Court second-guessing democratically elected state governments too.

  4. “In failing to trust Congress, the Court gives greater weight to its own judgment than that of the more democratically accountable Congress.”

    Yep, that’s their fucking job in a *Republican* form of government specifically designed to guard against the tyranny of the majority you retarded mendacious Marxist fuckwits.

  5. Gould and Johnson do not really care about the proper authority of Congress. They care about defending the lack of accountability of the regulatory state bureaucracy, as that is where the real decisions of our government are made now. Which is why they do not criticize Windsor which expanded that authority despite Congress not authorizing it.

    1. Right? The Supreme Court is deferring to Congress and Congress is deferring to the executive bureaucracy.

      1. It has to do with what kind of decisions that overturn Congress’ will they think are bad and which they ignore. The former seem to be those that disempowered the bureaucracy.

  6. Defer to Congress?

    One of the early congressmen put it best: The Congress is like a bunch of pigs. You must hit them in the snout to make them stop.

    And someone remind the professors that we do not live in a democracy. We live in a Federal Republic. That actually means something.

  7. I wonder why there isn’t more here at Reason on Joe Biden’s extensive voting record. To wit he voted for the AUMF and subsequent invasions of Iraq, Afghanistan, and of course as VP supported invasions of Libya, Syria, Pakistani airspace, and drone bombing of more. He voted for the DoMA and supported it right up until his team decided it was politically unpalatable. He voted for the Patriot Act and supported renewals as VP.

    In short he the exact opposite of everything libertarians claim to be for and a strict authoritarian. Realizing Trump is not your cup of tea, can you honestly say he is worse given Biden’s voting record on civil rights and his support of foreign wars. His support of increasing the welfare state and new laws like the green new deal.

    But it’s basically crickets here while TDS rages on. Oh whatever, they are going to vote for Jo anyway so who cares I guess.

    1. Are you worried that the Reason staff and their readers are going to vote for Biden?

      1. They voted for Hillary over Trump. So, yeah, I have zero doubt that they will vote for Biden.

      2. Lol, of course the Reasonistas are voting Biden.
        With the exception of three or four writers (depending on how many Cosmopolitans Robby’s had) the majority of the staff are conventional Democrats.

    2. You must not read much.

      1. I’m pretty sure Vox doesn’t count as reading.

  8. “…the Supreme Court has no business second-guessing these sorts of statutory and regulatory schemes designed by Congress. They also fault the Court for acting in a way that undermines the ostensible will of the majority. “Congress’s members are far more representative of the American people than are the Supreme Court’s nine justices,” they write. “In failing to trust Congress, the Court gives greater weight to its own judgment than that of the more democratically accountable Congress.”

    And this from professors at leading law schools? I’m no Constitutional scholar, but something about this being a republic, Constitutionally guaranteed rights, and bulwarks against a tyranny of the majority come to mind; or is all that just old school ersatz? What do we have a court for again?

  9. From the photo, everyone takes a whiff and tries to guess what Elena had for lunch.

  10. Oh hell no! Like Heinlein said, it should be easier to repeal laws than pass them, and it should sure as hell be the duty of everyone, whether judge, legislator, or voter, to reject every law which has the slightest doubt.

    Put laws up against a jury of 1 random sane adults. If even one of them cannot understand a law, as written, without any more help than a dictionary, then throw that law out. If these defects are pointed out before it passes, and later it is thrown out for the same reasons, then the author and everyone who voted for it or enforced it needs to be tarred and feathered and forbidden from ever again receiving a dime of public support.

    1. s/1/12. Good grief!

  11. “has witnessed a dangerous trend: a Supreme Court that expresses deep suspicion of Congress’s competence and motives.”

    Well, it HAS been reported that they read the papers. The whole damn world now has deep suspicion of Congress’s competence and motives.

    1. What’s frightening is that people so stupid as to not suspect Congress’s competence and motives are allowed to teach our children.

  12. >>”Congress’s members are far more representative of the American people than are the Supreme Court’s nine justices”

    the lens Gould & Johnson view things through is in a different galaxy than me

    1. Ok let’s just boil this frog down to its bones:
      The problem is that the court is not majority liberal at this time; therefore it has to be cast in doubt as to the validity of it’s positions lest they not act according to the professors foregone conclusions. Which are no doubt very progressive.

      Now, as we know, “notorious” was diagnosed with liver cancer back in February [and she is just now choosing to let that little cat out of the colostomy bag]; this on the heels of pancreatic #2 and metastasis to her lungs; she’s dying. Just imagine what will ensue when that happens in the next few weeks.

      Given OMB [orange man bad]’s disposition, I would not be at all surprised if he nominates Amy Barrett to replace her. And murder turtle has the wheels of confirmation pretty well oiled after 200 judges.

      1. murder turtle is lol.

      2. I’d pay to see that… a great big middle finger (do turtles have middle fingers?) to Shumer as he mewls about ‘not in a POTUS’ last year.

        “murder turtle” made me actually lol. Nice.

    2. That]s true: most of the American people and nearly all of Congress are stupid and venal, but a typical SC Justice is only stupid _or_ venal.

  13. The requirements to be a legislator in this country are essentially be a citizen and in federal offices a certain age and a requirement they are residents of the state they represent, and of course to win the election for the office in question.

    What is lacking in any of these requirements? Any sort of knowledge of their state’s constitution, the United States Constitution, appropriate case law at any level, the common law, criminal or civil procedure, etc. Why then should a law be presumed to be in accordance with the US Constitution when the lawmakers themselves have zero requirement to either understand the Constitution or pass Constitutional laws (especially since they are given immunity for their actions taken as lawmakers)?

    Every justice of the Supreme Court has (ostensibly) spent decades studying Constitutional law, and have risen to the highest ranks of their peers who do the same. The presumption that a law passed is probably Constitutional and should be given deference in most cases is as preposterous as the idea that a high schooler’s biology term paper should be presumed to be good enough for submission to the most prestigious scientific journals in the world.

  14. Not so fast! The Supreme Court let Congress have its head in Dred Scott v. Sanford. One war later the 13th and 14th Amendments clarified the context and struck down the Fugitive Slave laws. The Court did not rewrite anything, but played the hand it was dealt. Congress and the Executive had to reshuffle and make a new deal. Harriet Beecher Stowe’s impassioned rhetoric evidently helped change things. Especially cutting were her retorts to southern evasions that “only a few” rapes and murders resulted from slavery.

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  17. Our nations biggest mistake — being led to believe we are a democracy without a Constitution.

    1. Why do smart people keep pushing the fiction that we live in a democracy? Democracy is tyranny. The only democratic branch of our government is Congress. And prior to the disastrous 17th amendment, the House was the only democratic institution in Congress. The executive was crafted to be a limited monarchy accountable to the states, and the judiciary an aristocracy tied to the executive. These checks and balances prevent wild swings in the balance of power and protect all minorities from the tyranny of the 51%. Any article referring to the country as a “democracy” should instantly raise suspicion as it is likely shilling for progressives.

      1. Well said — It’s almost as if everyone forgot congresses job description (i.e. their oath of office). Instead of electing the best person for the job description everyone just elects the most popular criminal to do their criminal desires for them.

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