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The major question is, what to do about the courts?


Neil Gorsuch’s mom really hated the agency for which she was the administrator, and now his son has been able to pretend that this hatred is actually constitutional law. Kagan did a good job of explaining the far-reaching implications of the “major questions” offshoot of nondelegation doctrine:

The last point there is the kicker going forward. Between this case, Shelby County, and Brnovich, as Paul says the only operative doctrine is “Democratic congressional majorities and/or presidents are not allowed to govern.” This has been the worst 8-day period in the mostly ignominious history of the Supreme Court, and it’s not an outlier — this is the new reality for the foreseeable future.

The Supreme Court is at this point an incredibly malign institution that is actively destructive of American democracy. There is precious little that a 50-50 Senate is going to be able to do about it — which is one reason the Court has gotten so radical so quickly — but at a minimum Democratic elites need to recognize the problem, and see diminishing the Court’s institutional legitimacy as a goal rather than a regrettable byproduct of its conduct to be avoided.

Institutions merit no inherent presumption of legitimacy; in a democracy, it must be earned. A supermajority imposing a broad policy agenda on the country although the party it represents has won the popular vote once since 1988 deserves none.

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