Conservative Supreme Court judges may undermine Trump to get their way
[Adapted from this Twitter Thread]
I have a piece in @washingtonpost @monkeycageblog this morning about yesterday’s chilling SCOTUS showdown over the future of the New Deal administrative state. Thread👇👇 (washingtonpost.com/politics/2019/…)
The case at issue — Gundy v. US — dealt with sex offender registries.
Libertarian campaigners latched onto the case as a way to force a confrontation over how and if government can effectively regulate (i.e. how micro-manage-y does Congress need to be.) (politico.com/magazine/story…)
The decision was dragged out to the last minute, forcing an unusual Thursday drop date. (law.com/nationallawjou…) And now that it’s out, we know why it took so long. Trump’s appointee Neil Gorsuch was salivating at the opportunity to roll back the New Deal, issuing a record-straining 33-page dissent. (Guy likes to write long.) (scotusblog.com/2018/06/justic…)
As @imillhiser writes, Gorsuch is far to the right of even Scalia on these matters. (thinkprogress.org/justice-alito-…) He would have had the majority opinion, but for one small hitch: his comrade in rolling-back-the-20th-century Brett Kavanaugh was sworn in four days too late to serve in the case.
Four liberal justices, four conservatives — it could have been a split. But since that wouldn’t have changed the outcome (pro-regulation lower court decision upheld), Alito issued a prickly concurrence where he broadcast his gameness for future fights.
Alito: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.”
As it turns out, the Court may have a second bite at the apple in a case they could decide to take up this week: AIIS v. US, over Trump’s steel tariffs. (lawfareblog.com/new-challenge-…) If the reasoning in Kagan’s plurality opinion and Gorsuch’s dissent carry over to AIIS, things will look very good for ending Trump’s trade war, but very bad for the future of the administrative state — as @AlexxLawson reports here: (law360.com/articles/11713…)
The politics of all this are just wacky.
The politics of the way these attacks on the non-delegation doctrine are playing out are just wacky. Conservative justices side with child rapist to attack the administrative state… to pave the way for having to decide whether to attack a president of their own party?
Trump — Gorsuch’s appointer — is running on a populist trade pitch, as @ThePlumLineGS reports.
As I said yesterday, we need a word for a Sophie’s choice mixed with an own goal, mashed up with the Arthashastra’s “the enemy of my enemy is my friend.” (washingtonpost.com/opinions/2019/…)
On the other side, assuming Kagan’s litmus tests in Gundy carry over to AIIS, liberal justices would be siding with the #resistance to Trump’s trade overreach at the risk of hamstringing future Dem presidents, who might want to — ya know — actually regulate.
In short, yesterday’s divided court might have paved the way for unity against Trump’s trade war. But below the surface, we see further signs of how the Trump era has broken American politics. (washingtonpost.com/politics/2019/…)