While I respect the author's perspective and opinion -- and his expertise -- he is not being fair to what are, in fact, well-argued majority and concurring opinions. In a short opinion piece like this, that isn't unusual, but when his rhetoric gets the better of him (justices with "damn the torpodoes" views of how to decide cases; Supreme Court justices who have "hidden behind doctrines like originalism" ) he fails to address the best arguments made by the majority in these cases.
What is the role of the Supreme Court in the Constitution's structure? Specifically, what are its duties with respect to the administrative state? The Court is not there to "eviscerate" the administrative state, it is there to decide cases and controversies, and these in particular involve very hard questions that have sound arguments on two (at least) sides. I found the rationales articulated well by the varied opinions, and though I am not a Horseman or Prof. Dicey or Pound, I did -- well, not exactly "love" the recent opinions, but I was certainly more persuaded by the majority than the dissents in each case.
We are not and cannot "go back" to the 1930s administrative state; it is now a behemoth rather than a developing new idea in the American system of government. That can be viewed as good or bad or neutral, but what it has become, and what we have taken for granted are important developments that the Court can and should review in light of the Executive authority and Congressional prerogatives.
I am glad we have a court that it taking its job seriously, seriously considering and analyzing each case on its facts, and moving the law in what I view as a better direction, given constitutional requirements and modern realities.
The court's legitimacy does not (or should not) depend on political preferences or whims, but on the fact that it is willing to put its thinking out to the public in written form. If there are two or more sides, it is fair to give them their best reading, and countering not with hotter rhetoric but with better argument.
While I respect the author's perspective and opinion -- and his expertise -- he is not being fair to what are, in fact, well-argued majority and concurring opinions. In a short opinion piece like this, that isn't unusual, but when his rhetoric gets the better of him (justices with "damn the torpodoes" views of how to decide cases; Supreme Court justices who have "hidden behind doctrines like originalism" ) he fails to address the best arguments made by the majority in these cases.
What is the role of the Supreme Court in the Constitution's structure? Specifically, what are its duties with respect to the administrative state? The Court is not there to "eviscerate" the administrative state, it is there to decide cases and controversies, and these in particular involve very hard questions that have sound arguments on two (at least) sides. I found the rationales articulated well by the varied opinions, and though I am not a Horseman or Prof. Dicey or Pound, I did -- well, not exactly "love" the recent opinions, but I was certainly more persuaded by the majority than the dissents in each case.
We are not and cannot "go back" to the 1930s administrative state; it is now a behemoth rather than a developing new idea in the American system of government. That can be viewed as good or bad or neutral, but what it has become, and what we have taken for granted are important developments that the Court can and should review in light of the Executive authority and Congressional prerogatives.
I am glad we have a court that it taking its job seriously, seriously considering and analyzing each case on its facts, and moving the law in what I view as a better direction, given constitutional requirements and modern realities.
The court's legitimacy does not (or should not) depend on political preferences or whims, but on the fact that it is willing to put its thinking out to the public in written form. If there are two or more sides, it is fair to give them their best reading, and countering not with hotter rhetoric but with better argument.