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A Court For the New Gilded Age


This description of the general trajectory of the Supreme Court that the nomination of Brett Kavanaugh has consolidated is excellent:

But rather than debate this squarely, we are instead faced with grifters like Kavanaugh’s former boss Ken Starr insisting in the pages of the Washington Post that Kavanaugh stands for nothing more than a simple “pro-democracy, let-the-people-govern-themselves vision.” The truth is quite the opposite — Kavanaugh’s vision, which he shares with Starr and the bulk of the conservative legal academy, is one in which the courts should stand as staunch allies of capital and block any effort at democratic control of big business.

The notion that Kavanaugh holds a pro-democracy vision is what the Post put in Starr’s headline, but the full sentence makes it clear that the former special prosecutor is running a shell game. Starr’s claim is not that Kavanaugh believes in deference to the elected branches of government and will be reluctant to strike down laws as unconstitutional. Rather, what Starr argues (emphasis mine) is that Kavanaugh’s “pro-democracy, let-the-people-govern-themselves vision has been evident in his incisive questioning of the modern-day judicial emphasis on courthouse deference to administrative agencies.”

n short, Starr praises Kavanaugh for favoring judicial activism in pursuit of a light-touch regulatory agenda.

The way the American political system works is that passing laws is clunky and difficult. Between bicameralism, the presidential veto, the committee system, and the filibuster, it’s just very hard to get new legislation enacted. At the same time, the business world moves fast to try to exploit profit-making opportunities. So if you want to regulate business effectively, you can’t play legislative whack-a-mole and spot abuses in real time. What reformers do instead is try to create regulatory agencies that are given broad mandates to police areas of conduct.

Which is, the in context of the American constitutional system, makes emptily formalistic restrictions on the powers of either branch particularly dangerous. Congress cannot anticipate any possible objection ex ante, and the high-veto-point nature of the American system makes correcting “mistakes” enormously difficult.

And, of course, the shell game never ends:

If you read Kavanaugh’s decisions on cases regarding EPA regulations, you see a judge who poses as a defender of congressional prerogatives over an executive run amok. But if you glance instead at his ruling on a case relating to the Consumer Financial Protection Bureau, you see the opposite.

When creating this agency, Congress decided that the best way to create effective consumer protection would be to grant the agency a good measure of independence from the president — giving the agency a single director (rather than a five-person commission like the SEC or FCC) and giving the director a fixed-term. This, according to Kavanaugh, is unconstitutional because it violates the unitary nature of the executive branch.

So we cannot allow executive agencies to regulate aggressively because that would step on the prerogatives of Congress, but we cannot allow Congress to set up an aggressive regulatory agency because that would step on the prerogatives of the president.

And, of course, where Kavanaugh can be expected to be deferential is where judicial review is more defensible — protecting the rights of relatively powerless individuals against the state, and protecting the channels of democracy:

The point, however, is not that Kavanaugh is an aggressive invalidator of government action. He does not think, for example, that the Fourth Amendment curbs the National Security Agency’s ability to engage in bulk, warrantless surveillance of Americans.

But where a progressive judge might see judicial intervention as primarily warranted in order to protect the powerless against assaults from the powerful, Kavanaugh and the conservative legal mainstream see it as a tool to protect business owners from majority rule. If one is a sufficiently unprincipled liar — which Brett Kavanaugh certainly is, as we saw in his remarks after Trump introduced him to the nation — one can dress this up in the language of democracy or originalism or whatever else.

As I’ve said before, the dominant theme of the Roberts Court is to take Footnote Four and stand on its head. It’s about to get even worse.

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