It seems that the Chief Justice’s political pragmatism as determinative for ruling leads to legal incoherence and the fragmentation of the court. In light of shifting political fortunes on all sides, the instability of the court adds to the instability of society in the name of temporary pragmatism.
Well said. (Although I’m not quite sure whether it is political pragmatism in the Chief’s case, or wild political passion directed contra the President).
I think Gorsuch's concurrence betrays a textualism supported by a latent American Whig political morality—opposition to a strong executive and support for congressional supremacy. So much for a neutral application of the law.
Also, it seems to me that the major question doctrine is nothing more than a piecemeal application of the non-delegation doctrine.
Just read Kavanaugh’s dissent. Model of clarity and cogency compared to the clarity—obsessed but serpentine density of the Roberts faction’s reasoning.
Behind the word splitting and doctrinal games at SCOTUS, the real substantive reality is a brain dead, inert Congress. SCOTUS awkwardly fills in with various excuses about Congressional inaction. Kavanaugh affirmatively scolds.
But Congress? The real source of the problem? Nada.
Roberts bought some time. Let’s see if Congress uses it. I’m not optimistic. Too busy worshiping their Trumpist deity. He’s just a fucking federal employee!
The deeper issue isn’t Chevron vs. “major questions,” but that clarity itself has become a governance fiction.
When courts abandon deference because “how clear is clear?” is unworkable, then resurrect the same standard under a different name, it signals something more basic: modern power no longer fits clarity-based review at all.
What’s collapsing here isn’t doctrine, it’s the assumption that legitimacy can still be produced by post-hoc interpretive thresholds.
I feel I’ve been having similar thoughts as well. Though I agree with Kavanaugh’s dissent, the counter arguments are plausible to me as well.
The myriad of judicial tools available thus allows a jurist to construct a plausible sounding argument in either direction (especially SCOTUS where they don’t have to fear reversal). Law at the highest level therefore becomes an ink blot test.
It's back to the future. A Rehnquist-ian opinion, where 6 justices said IEEPA didn't allow the President to impose tariffs, but the subgroups had their own rationales.
It seems that the Chief Justice’s political pragmatism as determinative for ruling leads to legal incoherence and the fragmentation of the court. In light of shifting political fortunes on all sides, the instability of the court adds to the instability of society in the name of temporary pragmatism.
Well said. (Although I’m not quite sure whether it is political pragmatism in the Chief’s case, or wild political passion directed contra the President).
I’m not aure that the Chief Justice would make such a distinction!
Justice Kavanaugh could’ve (and should’ve) cited Plato as authority for his metaphysical argument that the greater contains the lesser.
I mean nobody really knows what the president is "allowed" to do. It's clear as mud. "Muh checks and balances"
I think Gorsuch's concurrence betrays a textualism supported by a latent American Whig political morality—opposition to a strong executive and support for congressional supremacy. So much for a neutral application of the law.
Also, it seems to me that the major question doctrine is nothing more than a piecemeal application of the non-delegation doctrine.
Just read Kavanaugh’s dissent. Model of clarity and cogency compared to the clarity—obsessed but serpentine density of the Roberts faction’s reasoning.
Behind the word splitting and doctrinal games at SCOTUS, the real substantive reality is a brain dead, inert Congress. SCOTUS awkwardly fills in with various excuses about Congressional inaction. Kavanaugh affirmatively scolds.
But Congress? The real source of the problem? Nada.
Roberts bought some time. Let’s see if Congress uses it. I’m not optimistic. Too busy worshiping their Trumpist deity. He’s just a fucking federal employee!
The deeper issue isn’t Chevron vs. “major questions,” but that clarity itself has become a governance fiction.
When courts abandon deference because “how clear is clear?” is unworkable, then resurrect the same standard under a different name, it signals something more basic: modern power no longer fits clarity-based review at all.
What’s collapsing here isn’t doctrine, it’s the assumption that legitimacy can still be produced by post-hoc interpretive thresholds.
I feel I’ve been having similar thoughts as well. Though I agree with Kavanaugh’s dissent, the counter arguments are plausible to me as well.
The myriad of judicial tools available thus allows a jurist to construct a plausible sounding argument in either direction (especially SCOTUS where they don’t have to fear reversal). Law at the highest level therefore becomes an ink blot test.
Does truth exit? Or does only power exit?
Maybe I’m just feels cynical tonight 😂
It's back to the future. A Rehnquist-ian opinion, where 6 justices said IEEPA didn't allow the President to impose tariffs, but the subgroups had their own rationales.