The Supreme Court uses “shadow acts” to cross constitutional boundaries in the case of immigration
Plus, the order “doesn’t make sense,” as Ian Millhiser explains. “It is not at all clear what the Biden administration should do to comply with the decision of the court in Biden v. Texas. This decision suggests that the Department of Homeland Security committed a violation of the law in overturning a Trump-era immigration. “Politics, but it doesn’t identify what that violation is,” he writes. “And it forces the government to enter into sensitive negotiations to take up with at least one foreign government without specifying what it must ensure in these negotiations. “
All of this is bad, and it is a consequence of the court’s use of the shadow protocol: no one has to sign their name, and they do not have to provide legal justifications or precedents to address in decisions that emerge from the regular process. They are increasingly choosing to handle these hot political cases – religious exemptions from COVID restrictions, the moratorium on the pandemic, this immigration case – on an “emergency basis” that allows them to bypass the full procedure.
This is a really radical decision by an activist court that is very political
To put this new Supreme Court decision into perspective, it’s not as radical as a decision overturning Marbury v Madison or Brown v Board of Education.
But it is maybe two steps away from it. Https://t.co/HLYnlvWHzZ
– Ian Millhiser (@imillhiser) August 25, 2021
“It is time for Congress to curtail the power of a runaway judiciary,” tweeted Norman Ornstein, researcher emeritus at the American Enterprise Institute. “Congress has the power to limit the jurisdiction of the courts beyond the original jurisdiction of the Constitution.”
This is a necessary reform and, interestingly, the House of Representatives is taking a voting approach. After completing work on the infrastructure bills, the House of Representatives passed HR 4, the John R. Lewis Voting Rights Advancement Act, on Tuesday. In addition to restoring the parts of the electoral law that the Conservatives had cut out, the law instructed the court to place more weight on the “public interest in increasing access to the right to vote” than on the state’s power to restrict that right to vote. The law “overrides the court’s own rules for ruling electoral-related cases – which greatly favor states’ ability to suppress votes – and replaces them with voter-friendly guidelines that would force judges to guarantee equal suffrage.”
In addition, HR 4 prohibits the court from using the shadow file to issue emergency orders that reverse decisions by lower courts to protect voters. The 2020 elections provide examples of how the court is doing just that, overturning lower court decisions that allowed voters great flexibility in voting due to the pandemic, voting by postal vote, roadside elections or post boxes, and extending voting times.
In order to get these reforms passed and more in charge (like restricting jurisdiction in executive matters), the Senate must first get rid of the filibuster, at least on voting issues. This is the first major reform. Next, the composition of the Supreme Court will be reformed directly, preferably through enlargement.
There really is no time. The six Conservatives in court keep demonstrating that they are at war with President Joe Biden and the Democratic Congress. They claim power where the constitution does not allow it, and it is time the other two branches fight back.