Thread by @gvincentamore

🧵1/ The Madness of Queen Ketanji

Much has been written about the Court’s thorough, well-deserved tongue-lashing of Justice Jackson. I’d like to focus on her fundamental misconception of the judicial role, a misconception that is shocking for someone with a lifetime appointment to our highest Court. It is reflected first in these two statements she makes with characteristically arrogant certitude:

2/ She says:
“Nor is it debatable that the role of the Judiciary in our constitutional scheme is to ensure fidelity to law.”
-and-
She refers to the Court as “The very institution our founding charter charges with the duty to ensure universal adherence to the law.”
Well, she’s right that these statements are not debatable, but not for the reason she thinks. They’re not debatable because they’re flat wrong.

3/ The Constitution assigns to the President, not the Judiciary, the power to “take Care that the Laws be faithfully executed.” The Judicial Power, on the other hand extends ONLY to “Cases, in Law and Equity, arising under this Constitution, the Laws of the United States.” Cases…..A vs. B….disputes between PARTIES to a lawsuit.
Her explicit unwillingness to accept this limit is found in this extraordinary passage:

4/ She says:
“the majority views the Judiciary's power through an aperture that is much too small, leading it to think that the only function of our courts is to provide "complete relief" to private parties. Sure, federal courts do that, and they do it well. But they also diligently maintain the rule of law itself.” (Emphasis added). But, the view of the judicial role she ascribes to the majority and calls “too small” is exactly the role the Constitution assigns: deciding “cases.” The role she would add: untethered guardians of the ”the rule of law itself,” is Constitutionally atextual and a profound misunderstanding of the judicial role.

5/ Yes, the courts interpret and apply the Constitution and laws. They “say what the law is.” But they do so ONLY as a MEANS of deciding CASES. Their law interpretation is in service of their case resolving power, not an independent, free floating “lawgiver” power. At bottom, Queen Ketanji’s lament is that she wants the courts to have a power the founders did not give them, and it irks her.

6/ Queen Ketanji’s unbridled activism is seen also in her dismissive treatment of the Judiciary Act and the long line of cases applying it. She chides the Court for “focusing on inapt comparisons to impotent English tribunals,” complaining:
“To hear the majority tell it, this suit raises a mind-numb-ingly technical query: Are universal injunctions ‘sufficiently 'analogous' to the relief issued 'by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act' to fall within the equitable authority Congress granted federal courts in the Judiciary Act of 1789. But that legalese is a smokescreen.” Wow…let’s unpack that.

7/ Here, eschewing reasoned argument in favor of Ketanji-fiat, she seeks without ever mentioning them to overrule an unbroken line of cases dating back at least as far as 1869 interpreting the Judiciary Act. Payne v. Hook, 7 Wall. 425, 430 (1869) ("The equity jurisdiction conferred on the Federal courts is the same that the High Court of Chancery in England possesses"). But, she’s not finished.

8/ In case she’s wrong about the parameters of the Judiciary Act, she adds:
“To the extent Congress has attempted to strip federal courts of that power [she means the free floating lawgiver power she envisions] via the Judiciary Act, . . .it is powerless to do so.” So, in sum: “We should ignore the way we’ve interpreted the Judiciary Act for two centuries, and, if we can’t do that, then we should ignore the Act itself.” It’s little wonder the Court said Jackson’s view would make even the most ardent judicial activist blush. Nevermind that the litigants in the CASE is front of here never argued (a) that the cases interpreting the Judiciary Act should be overruled, nor (b) that the Judiciary Act itself is unconstitutional, these pesky details cannot be allowed to derail the Queen’s quest for a judicial star chamber.

9/9 The final fallacy in the Jackson opinion (well, probably not final, but his thread is already long enough) is the slight of hand by which she equates the role of “the Judiciary” with the power of a single district court judge. The Supreme Court is the only court established by the Constitution. The others were created by Congress. No litigant in the case Jackson was called to decide disputed that the Supreme Court may issue a judgment that binds the Executive nationwide. Thus, yes, the “Judiciary” has that ability. Rather, what was as issue here was whether every one of the 677 district court judges can exercise that power, so that any program of the Executive must enjoy their unanimous consent to proceed. The Court sensibly concluded that the Judiciary Act did not repose such awesome power in each of 677 people, acting alone. Jackson’s view to the contrary is frightening for what it says about her long tenure to come.