Today in Supreme Court History: February 9, 1937

2/9/1937: NLRB v. Jones & Laughlin Steel Corp. argued.

Comments

[minus the clever name]

Wickard V Filburn, never met anyone I considered smart or educated that didn't think that was utter trash.

YOu can't grow that for your home use, it might destroy the world economy

[JoeFromtheBronx]

"Might destroy the world economy," to be clear, is not the reason the policy was upheld. Sorry, I never met you, btw.

Steve Vladeck with another anniversary:

https://www.stevevladeck.com/p/209-the-modern-emergency-docket-turns?utm_source=%2Finbox&utm_medium=reader2

[F.D. Wolf]

Speaking of destroying the world economy, Vladeck bemoans the tenth anniversary of the Court's not allowing the regulatory "Clean Energy Plan" from Obama's EPA to take immediate effect while they were challenged in court. The purported regulations were so insane, so crippling to industry, and not plausibly based on any legal authority to issue them, that Laurence Tribe, not exactly Mr. Republican, said they were "burning the Constitution". The Court took "unprecedented" action in the face of unprecedented regulations.

[JoeFromtheBronx]

Vladeck largely is concerned about the fact they didn't explain themselves. The whole "shadow" (named by William Baude, an originalist) docket deal. If it was so horrible, they could have explained that was why they were taking that unprecedented step.

[F.D. Wolf]

And when they "explain" too much, they get criticized for that too, for telegraphing an ultimate merits decision without full briefing and hearing, usurping the role of the lower courts. Just recently there was controversy over whether the Court's "explanations" in these interlocutory decisions were binding precedent upon the lower courts. (The Court said, yes, they are). (I'll also note the dissenters offered no explanations for their decision either)

It's a difficult, perhaps impossible, road for the Court to navigate. It is criticized for either saying too little or saying too much.

[JoeFromtheBronx]

Okay, now you are addressing what Vladeck is specifically concerned about. Not the merits of the program.

You argued that a special response was warranted because of the nature of the program. People argue that Trump is doing something unprecedented. You sometimes argue he isn't, providing details.

The Court here did something novel and didn't say why. And then, continued to decide major things in the "shadow docket" to a greater degree than they historically did.

He wrote a whole book on the subject. People can check it out.

They have to do something, so however hard it is to choose, they have to choose one path. The overall subject is something of a particular concern of Vladeck. Or, to be a bit crude, what he is "bemoaning" about.