Steve Vladeck
@steve_vladeck


For its first 101 years, and most of its first 135 years, #SCOTUS decided the cases Congress *told it* to decide.

It's only a post-1925 innovation that the Justices have so much control over their docket. Maybe it's time for Congress to consider taking back some of that control?


To be clear, this is *not* about "jurisdiction-stripping." It's the opposite: this is the third straight Term #SCOTUS decided < 60 cases — a total it hadn't fallen below since 1864. To me, having Congress take more of a role in shaping the Court's docket can only be a good thing.


Many will want more aggressive reforms. Fair enough. My only point is that here is relatively low-hanging fruit that ought not to be seen as an *attack* on the Court, but rather the salutary and long-overdue restoration of a healthier interbranch dynamic:

Opinion | There's something weird going down at the Supreme Court this term


Docket control; “circuit-riding”; their own building; pensions; &c. The Justices *depended* on Congress for so much of our history — and so were necessarily interested in maintaining a healthy inter-branch dialogue. I’m hard-pressed to see the downside of restoring that dialogue.

West Virginia v. Environmental Protection Agency strikes down a federal environmental regulation of power plants that never took effect, that the Biden administration has no intention of reinstating, and that would have accomplished absolutely nothing even if it had be enforced.

Nevertheless, the Court voted along ideological lines to strike down this regulation that the EPA drafted under authority granted by the Clean Air Act, claiming that it amounts to an “extraordinary” overreach by the EPA. And their decision has enormous implications both for the environment and for the federal government more broadly.

At the very least, the West Virginia decision strips the EPA of its authority to shift energy production away from dirty coal-fired plants and toward cleaner methods of energy production — although market forces have thus far accomplished much of this shift on their own, because coal-fired plants are often more expensive to operate than cleaner plants. The decision could also lead to additions limits on the EPA’s ability to regulate that industry going forward.

The West Virginia decision confirms something that has been implicit in the Supreme Court’s recent decisions governing federal agencies’ power to issue binding regulations under authority granted by Congress: When a majority of the Supreme Court disagrees with a regulation pushed out by a federal agency, the Court has given itself the power to veto that regulation — and it will do so by invoking something known as the “major questions doctrine.”

Under this doctrine, the Court explained in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Thus, if a majority of the Court deems a regulation to be too significant, it will strike it down unless Congress very explicitly authorized that particular regulation.

This doctrine comes from nowhere. Last week, the Court said that abortion is unprotected by the Constitution — leaning heavily on the fact that abortion is not mentioned in the Constitution. But the the major questions doctrine is also mentioned nowhere in the Constitution. Nor can it be found in any statute. The justices made it up. And, at least during President Joe Biden’s administration, the Court has wielded it quite aggressively to veto regulations that the Court’s conservative majority finds objectionable.

The bottom line after the West Virginia decision is that agencies may still exercise regulatory authority, but only subject to a judicial veto. The Supreme Court has effectively placed itself at the head of much of the executive branch of the federal government.

The Supreme Court on Thursday agreed to hear Moore v. Harper, an “independent state legislature” theory case from North Carolina. This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights in federal elections. It also could provide the path for election subversion in congressional and presidential elections.

The issue presented in this case has been a recurring one in recent years. Two parts of the Constitution—Article I, Section 4 as to congressional elections and Article II as to presidential elections—give state “legislatures” the power to set certain rules (in the Article I, Section 4 context, subject to congressional override). In cases such as Smiley v. Holm, the Supreme Court has long understood the use of the term legislature here to broadly encompass a state’s legislative process, such as the need for a governor’s signature on legislative action (or veto override) about congressional elections. As recently as 2015, in Arizona Independent Redistricting Commission v. Arizona Legislature, the Supreme Court held that the voters in Arizona could use the initiative process to create an independent redistricting commission to draw congressional districts even when the state legislature objected. The majority saw voters passing legislation via initiative as part of that legislative process.

There’s a more radical version of the idea that the legislature has power, standing on its own as a body and not part of the general structure of state government, in the independent state legislature theory.

Take the facts of the Moore case. The North Carolina Supreme Court, interpreting a provision of the state constitution protecting the right to vote, held that partisan gerrymandering violated the state constitution and required drawing fairer lines, including in congressional districts. That state court is majority Democrat, and the North Carolina General Assembly is majority Republican. The Republican legislature argued that this holding usurped its sole and plenary power to choose the manner for drawing congressional districts.

Pause on that for a moment: The theory in this extreme form is that the state constitution as interpreted by the state supreme court is not a limit on legislative power. This position would essentially neuter the development of any laws protecting voters more broadly than the federal Constitution based on voting rights provisions in state constitutions. It also goes against what Roberts wrote for the conservative majority of the court as recently as in the 2019 redistricting case Rucho v. Common Cause, when he explicitly said that “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” regarding redistricting. As Roberts wrote, the courts have a role to play in redistricting fights:

Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution.

A state supreme court—albeit a Democratic-controlled one—making a judgment about what a state constitution allows in terms of redistricting is also what happened in North Carolina. Of course, the composition of the Supreme Court has changed in the intervening years since Rucho.

What’s worse, this theory might not just restrain state supreme courts; it can also potentially restrain state and local agencies and governors implementing rules for running elections.