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By Edward Chermerinsky in the ABA Journal concerning the current’s regime’s attempt to get the Supreme Court to curtail nationwide injunctions: “The context of this case is a challenge to a controversial executive order by a conservative president. But conservative state governments and organizations repeatedly sought nationwide injunctions during the Biden and Obama presidencies.
“The context is important in another sense as well. At the same time Trump is repeatedly asserting broad executive powers, he is attempting to limit the ability of courts to check them by having the Supreme Court end nationwide injunctions.”
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The Chevron doctrine, which states that courts should defer to the administrative agencies that administer particular statutes in interpreting those statutes, is a fundamentally conservative doctrine that limits the power of the courts. After all, the administrative agencies have more expertise in the subject matter of particular statutes than the courts. Chevron is a recognition of the Dunning-Kruger effect before Dunning and Kruger. Its abrogation is a power grab by the courts that will lead to much judicial activism and legislating from the bench.
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I have a slightly different idea for a simple Supreme Court that could be done by statute without amending the Constitution. Congress could create the position of Senior Justice, analogous to Senior Judges in the lower courts, who continue to sit by designation with a much reduced caseload and who get to decide which types of cases they will take. Retired Supreme Court Judges generally become Senior Judges. Justice Souter continues (as far as I know) to hear cases on the First Circuit. Here’s how it would work. Senior Justices would no longer vote on writs of certiorari (i.e., on which cases the Court will take) but, once the Court has granted certiorari, they could choose to take part in that case, e.g., by so informing the Chief Justice within 30 days. The result would be to draw Justices Breyer, Kennedy, and Souter out of retirement for any cases they deeply care about. If Justice Sotomayor were to retire and be replaced with another liberal, that could undermine the current 6-3 conservative majority (if you ever had tie, e.g., at 6-6, that would merely affirm the lower court ruling in that case without creating binding Supreme Court precedent).
I have no idea how feasible this would be in practice but I throw it out as something that might be possible, if only because Congress can do it by statute (or they could simply enlarge the Court but that might be a bridge too far for some, even on the Democratic side).
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From a Justice on the Hawaii Supreme Court. It’s all dicta and tangential to the case at hand but it’s still on point and worth reading.
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