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The Supreme Court's Total War on Congress
In little-heralded decisions, the Roberts court has moved to entrench judicial supremacy and destroy the legislative branch.
https://newrepublic.com/article/162914/supreme-court-roberts-war-congress
. . .
What these critics have missed is the conservative justices’ incessant drive to radically enhance the court’s power—power in opposition to Congresses past, present, and future; as well as against the federal executive branch and state and local governments. This historic trend, steadily gaining momentum over the 16-year span of John Roberts’s tenure as chief justice, escalated sharply in several end-of-term decisions. In these, the court’s dominant bloc—which President Ronald Reagan’s solicitor general, Charles Fried, labeled “reactionaries,” not conservatives—asserted for this court power on a level and scale unprecedented in the nation’s history: power de jure as well as de facto.
On June 25, in Trans-Union LLC v. Ramirez, the court threw out a jury’s award of damages for a credit reporting agency’s falsely classifying thousands of individuals as “matches” for federal government–identified “terrorists.” A 5–4 majority held that Congress lacks the power, exercised in the 1970 Fair Credit Reporting Act, to authorize individual consumers to enforce a statutory right to be free from negligently generated, derogatory false credit information. Specifically, the court added a judge-made requirement to the existing statute, stipulating that in order to sue, a consumer must suffer what the court majority termed “actual,” not merely “legal” injury—that is to say, be denied credit or a job—and trace that rejection to the credit reporting agency’s misinformation. As a practical matter, proving such a connection is all but impossible—a reality of litigation surely well known to these canny and experienced conservative justices.
In doing so, the court gutted a half-century-old consumer law and denied Congress authority to act on an indisputably reasonable judgment: that a consumer suffers serious “injury” from a proverbial sword of Damocles dangling over her head, in the form of severely damaging misinformation in a credit reporting agency’s accessible files. For such an injury, Congress determined that judicial redress is an efficacious, “necessary and proper” remedy.
In dissent, Justice Clarence Thomas decried the “remarkable novelty” of the court’s approach. “Never before,” the usually right-leaning Thomas wrote, “has this Court held that legal injury is inherently insufficient to support standing … enforceable in federal court.” Justice Elena Kagan underscored the majority’s overreach: “The Court here transforms standing law from a doctrine of judicial modesty into a tool of judicial aggrandizement.” The decision dulls incentives for business to respect myriad laws enacted by Congress, and does much the same for state legislatures, where remedying and deterring widespread and well-documented abuses against consumers, homeowners, employees, and other individuals is concerned.
In a less-noticed (and more mind-numbingly technical) decision in United States v. Arthrex, the same 5–4 majority invalidated a law designed to insulate, from political pressure, certain patent award decisions—which, Roberts’s majority opinion acknowledged, can be worth “billions” of dollars. The law provided that challenges to existing patents be decided by panels of Commerce Department officials, drawn principally from a roster of 200 administrative patent judges, or APJs, all of whom had been selected by the secretary of commerce. Further, Congress provided that a panel’s decision to sustain or invalidate a patent be final and not reviewable within the Department. But the court nixed Congress’s approach: The majority held that the director of the departmental unit housing the panels must be empowered to review the panels’ decisions, because the director is a presidentially appointed, Senate-confirmed official. . . .
What these critics have missed is the conservative justices’ incessant drive to radically enhance the court’s power—power in opposition to Congresses past, present, and future; as well as against the federal executive branch and state and local governments. This historic trend, steadily gaining momentum over the 16-year span of John Roberts’s tenure as chief justice, escalated sharply in several end-of-term decisions. In these, the court’s dominant bloc—which President Ronald Reagan’s solicitor general, Charles Fried, labeled “reactionaries,” not conservatives—asserted for this court power on a level and scale unprecedented in the nation’s history: power de jure as well as de facto.
On June 25, in Trans-Union LLC v. Ramirez, the court threw out a jury’s award of damages for a credit reporting agency’s falsely classifying thousands of individuals as “matches” for federal government–identified “terrorists.” A 5–4 majority held that Congress lacks the power, exercised in the 1970 Fair Credit Reporting Act, to authorize individual consumers to enforce a statutory right to be free from negligently generated, derogatory false credit information. Specifically, the court added a judge-made requirement to the existing statute, stipulating that in order to sue, a consumer must suffer what the court majority termed “actual,” not merely “legal” injury—that is to say, be denied credit or a job—and trace that rejection to the credit reporting agency’s misinformation. As a practical matter, proving such a connection is all but impossible—a reality of litigation surely well known to these canny and experienced conservative justices.
In doing so, the court gutted a half-century-old consumer law and denied Congress authority to act on an indisputably reasonable judgment: that a consumer suffers serious “injury” from a proverbial sword of Damocles dangling over her head, in the form of severely damaging misinformation in a credit reporting agency’s accessible files. For such an injury, Congress determined that judicial redress is an efficacious, “necessary and proper” remedy.
In dissent, Justice Clarence Thomas decried the “remarkable novelty” of the court’s approach. “Never before,” the usually right-leaning Thomas wrote, “has this Court held that legal injury is inherently insufficient to support standing … enforceable in federal court.” Justice Elena Kagan underscored the majority’s overreach: “The Court here transforms standing law from a doctrine of judicial modesty into a tool of judicial aggrandizement.” The decision dulls incentives for business to respect myriad laws enacted by Congress, and does much the same for state legislatures, where remedying and deterring widespread and well-documented abuses against consumers, homeowners, employees, and other individuals is concerned.
In a less-noticed (and more mind-numbingly technical) decision in United States v. Arthrex, the same 5–4 majority invalidated a law designed to insulate, from political pressure, certain patent award decisions—which, Roberts’s majority opinion acknowledged, can be worth “billions” of dollars. The law provided that challenges to existing patents be decided by panels of Commerce Department officials, drawn principally from a roster of 200 administrative patent judges, or APJs, all of whom had been selected by the secretary of commerce. Further, Congress provided that a panel’s decision to sustain or invalidate a patent be final and not reviewable within the Department. But the court nixed Congress’s approach: The majority held that the director of the departmental unit housing the panels must be empowered to review the panels’ decisions, because the director is a presidentially appointed, Senate-confirmed official. . . .
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