The Value of the Judicial Branch - Perspective

My father once told me “If I EVER hear that you refer to your mother as ‘my old lady’, it will not go well with you.” He was a master at understatement. What he provided in that one statement was something I came to appreciate. It is critical to look beyond immediate statements and to see their overall impact. And that leads us to today’s discussion of the most important quality of the judicial branch--perspective.

Our constitutional framers recognized that the executive and legislative branches were inherently pollical. James Freeman Clarke famously noted that “A politician thinks of the next election; a statesman of the next generation.” Human nature being what it is, it is easier to be a politician than to be a statesman.

Immediate gratification in the news cycle simply reinforces that. When you couple grandiose statements of policy and the desire of the media to find headline material, statesmen are simply not newsworthy. Rather, derogatory shorthand terms are an easily digestible way to make snap and often unfounded judgments more palatable.

Back to the framers. The balance to short-sighted political machinations was provided by the judicial branch. It is there that a defined, meticulous process looks beyond bravura to see whether an action actually has merit under our system of laws. Unlike others, the role of the courts is not to grab headlines but to provide analysis. That is not sexy and, frankly, you cannot summarize a 45-page legal opinion in 25 words or less.

The process also takes significant time. It is more important to get things right than quickly. So, after the dust settles and the courts reach their decisions, the news cycle has long since moved on. However, it is the principle of the decisions that have the greatest lasting impact.

Within the last few days, some court opinions have illustrated the benefit of a reasoned approach to legal issues.

-  A dismissed lawsuit against CNN was unanimously affirmed on appeal by the appellate court sitting en banc (meaning ALL of the justices participated). This included six justices appointed by President Trump.

·    - The Supreme Court found that tariffs were illegally imposed, noting that the executive branch had unconstitutionally usurped power restricted to the legislative branch.

·    - The attempted dissolution of Voice of America was an abuse of discretion.

·   -  The appointment of US attorneys in New Jersey violated the process for appointment and put into question the legality of some prosecutions.

·   -  The change in vaccination protocols not only violated the process to change the rules but also attempted to circumvent the appointment of members to an advisory council.

As a society, we can take comfort in the continued role of the judicial branch to provide perspective. We may not always agree with the outcomes of these cases (and US Supreme Court decisions often have extensively argued dissents). However, maintaining the rule of law is our greatest protection against actions that are, to put it most kindly, self-serving.

If we have one thing to fear, it is that respect for this co-equal branch of government may diminish, particularly through the use of name-calling. As Chief Justice John Roberts said earlier this week:

“You get used to the criticism right away, and it can very much be healthy. We don’t believe that we’re flawless in any way, and it’s important that our decisions are subjected to scrutiny, and they are. The problem, sometimes, is that the criticism can move from a focus on legal analysis to personalities.” 

 One more thing. I never called my mother “my old lady.”

Why the Conservative Split on the Tariff Case Is So Intriguing

Friday’s 6-3 Supreme Court opinion decided that Trump’s use of tariffs was an improper exercise of power that was reserved to Congress under the Constitution. The reason for the conservative split is perhaps the most intriguing part of the decision. As always, I am not going into the weeds and much of follows is a dramatic oversimplification for purposes of clarity.

Before getting to the disagreement among the conservative justices, we need to back up. Just because six justices agree on a result, that does not mean that they agree on the reasons for their ruling. Where there is a second, separate reason for a decision, the justices using that alternate rationale will write what is called a concurring opinion. Here, the three liberal justices found a separate reason for agreeing with Chief Justice Robert’s decision. In other words, they agreed with the result but not the reasoning. This means that in this case, there were at least two distinct reasons why what President Trump did was improper.

 In many cases, Supreme Court decisions rest on differing views about how to construe the Constitution and statutes. Typically, opinions on how to apply the Constitution is what separates the conservatives from the liberals. That was not the case here.

In the tariffs case, the conservatives agreed on the standards by which to judge Trump’s actions. That would often result in them voting in a block—but not here.

The standard applied in the tariffs case is one which has often been used by the courts to give the President a significant amount of discretion and leeway. Chief Justice Roberts’ opinion said that even this broad authority has its limits. President Trump exceeded that authority by attempting to take away something given to the Legislative branch by the Constitution. The dissenting justices would put no such limitation on the president.

Dissenting Justice Kavanaugh, in one of the weakest arguments you will likely see, noted that trying to return the ill-gotten tariffs would be extremely complicated. Think about that in another context. Say that a business defrauded millions of customers. Would you let it off the hook because of the difficulty in repaying those who were defrauded?

The bottom line is that although the conservative justices have generally agreed on expanding the powers of the executive branch, in the tariffs case, three of them said enough is enough.