The shadow docket knows
Amy Coney Barrett, one of the country’s most powerful partisan hacks, gave another one of the steady stream of protesting-too-much speeches we will keep getting as the Supreme Court remakes the Constitution in the image of the most recent platform of the Alabama Republican Party:
Supreme Court Justice Amy Coney Barrett said Monday that judges are not deciding cases to impose a “policy result,” but are making their best effort to determine what the law and the Constitution require.
In a nation splintered by partisanship and wracked by incivility, Barrett in remarks at the Ronald Reagan Presidential Library appeared to acknowledge that expected court decisions on reproductive rights and gun control would be seen through a political lens and lead to division. She urged Americans to “read the opinion” and consider the court’s reasoning before making judgments about the outcome.
“Does (the decision) read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?” she asked.
Americans should judge the court — or any federal court — by its reasoning, she said. “Is its reasoning that of a political or legislative body, or is its reasoning judicial?” she asked.
This is a rhetorical question, albeit with a different answer than she thinks. Anyway, you can probably see where this is going:
On Monday, Amy Coney Barrett said Americans should “read the opinion” to decide if a Supreme Court decision sounds like law-free policymaking.
Today, the Supreme Court issued a 5–4 decision against the Clean Water Act—without issuing an opinion. https://t.co/VAsdQGjaoM— Mark Joseph Stern (@mjs_DC) April 6, 2022
The Supreme Court's aggressive move to revive a Trump-era rule shredding the Clean Water Act is so extreme that even Chief Justice John Roberts dissented. Roberts! A longtime foe of the Clean Water Act! This is getting out of control really quickly. https://t.co/Dyz4gEimDy— Mark Joseph Stern (@mjs_DC) April 6, 2022
Remember when the Court effectively overruled one of its most important and most heavily-relied-on precedents with a conclusory one-paragraph opinion issued at midnight on a Wednesday? “Honest” and “persuasive” are somehow not coming to mind here.
Biden will not do this, but he should:
If SCOTUS rules on regulation without a hearing or argument, the administration should simply ignore it and state that, in the absence of a normal process judicial review, it sees the court’s judgments as advisory but not binding.— Will Wilkinson 🌐 (@willwilkinson) April 6, 2022