The Supremes, Greatest Hits 2026 - What is the proper role of the Judiciary?
Updated: 4 days ago
If ever there were doubt that I am a bit of a geek, one need not look further than how I spent my summer vacation, because only a geek would spend a good chunk of July reading Supreme Court opinions and dissents. And if that weren’t enough, I washed it all down by rereading many of the Federalist Papers, authored in defense of the then newly-written Constitution during the ratification period by the brilliant Alexander Hamilton; the father of the Constitution, James Madison; and the one most often forgotten, John Jay.
This summer reading wasn’t random. It was stimulated by the end of this year’s Supreme Court term a few weeks ago. It isn’t abnormal for the last decisions handed down each term to be their more difficult or controversial. This year was no different. But it would do us well to remember that over 40% of their decisions this year, as in most, were unanimous. Ignoring that fact paints too hyperbolic a picture of our Law being transitory.
But the headlines, and that transitory feel, come from the cases in the 60%. And the decisions that ended this term left many frustrated on both sides of the political spectrum. When I think of disappointment in a Court decision, my mind goes to an interview I once saw with former Supreme Court Justice Stephen Breyer in which he discussed his disappointment with the Dobbs decision that overturned Roe v. Wade. It isn’t what he said about that important case that I remember. Instead, it was how he handled his disappointment. He said, “But there we are and now we go on,” onto the next thing, “so that you can do a decent job on the next thing and you just keep going.” That is certainly a healthier way to approach defeat than how many of us might. Judicial philosophy or political bent aside, we can learn from each other and there is much about his comportment that I just adore.
Before diving into the specific cases that ended the term, I want to spend some time talking about just how badly our civics teachers let us down in seventh grade by teaching this notion that we have three co-equal branches of government. We do not. And a reading of the Federalist Papers would quickly disabuse anyone of that notion.
The Judiciary, as Hamilton pointed out in Federalist #78 is the weakest of the branches. Whereas the Legislature “commands the purse,” he wrote, and the Executive “holds the sword,” the Judiciary “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgements.”
No, in the founders’ minds, the Legislature was the strongest branch. It was set up to be the most responsive to the people, writing the laws the Executive enforces and the Judiciary interprets. Even its placement as Article I of the Constitution coveys its primacy. It was given many clearly enumerated powers, encompassing almost all powers really. And the last of its enumerated powers is a giant cover-all power referred to as the “necessary and proper” clause. In fact, given the new system, the Federalist writers expressed more concern at the Legislature’s ability to usurp power, than the Executive’s. And that is why they broke it into two chambers with two different means of election.
In the system they built, informed as it was by the usurpations of their former monarch, the Executive, as defined in Article II, was given few enumerated powers and many of those listed are constrained by the Legislature, reinforcing the Legislature’s primacy. For example, the Executive is the Commander-in-Chief, but only when those under his command are “called into actual service of the United States.” It is to Congress to declare war. It is to Congress to raise and support the armies. It is to Congress to provide “for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” The Executive has the power to make treaties, but only so long as two thirds of the Senate concurs. He may nominate officers, but only under the advice and consent of the Senate. In terms of actual policy, all he may really do is to “recommend to their (Congress’) Consideration such Measures as he shall judge necessary and expedient.”
We rave about the system of checks and balances the founders established. But interestingly, nowhere in the Constitution does it expressly say that the Supreme Court can check the other branches by declaring a law or an executive action unconstitutional. It simply says in Article VI that the Constitution “shall be the supreme law of the Land” and in Article III that “the judicial Power of the United States shall be vested in one supreme Court.” Read in between those lines, and informed by Hamilton’s Federalist #78, the Supreme Court in Marbury v. Madison (1803) gave to itself the power of judicial review that allows it to declare laws or executive action unconstitutional. But the declaration thereof is as far as their power goes.
So what is the proper role of the Judiciary? Judicial review does not mean it is for the Judiciary to decide extra-constitutionally what should be, even if that ‘should be’ is the right thing. It is to them merely to interpret what both the Constitution and the subordinate laws passed by Congress say should be. And this is where I struggle with some decisions of the Court and with some dissents. Because while some things said are reasonable, and perhaps are how things should be, that doesn’t mean the Court can or should implement them. Implement is a Congressional term. It is forward looking. The Court should be backward looking – applying what already is.
The challenge is that we currently live in a world where Congress struggles to act. We also live in a time where it is difficult to imagine any scenario buy which we could ever get the requisite 38 states needed to ratify a change to our Constitution. And in the void those two inconvenient truths leave, judicial review can be tempted toward judicial activism and recommending measures “necessary and expedient” can be tempted toward overreach by executive order.
And if all that weren’t challenging enough, welcome to more Constitutional vaguery, because nowhere does it say the Executive must adhere to the decisions of the Judiciary, let alone enforce its decisions. It simply assumes the holder of the office will do so because his oath is to “preserve, protect, and defend the Constitution of the United States.” If the oath is to ‘preserve’ and the Constitution is the ‘supreme law,’ then surely the Executive will adhere to the Constitution, right?
In Federalist #76, Hamilton said, “The institution of delegated power implies that there is a portion of virtue and honor among mankind which may be a reasonable foundation of confidence.” I speak often about my respect for the work the founders did forming this nation. The Republic they left us is a brilliant system. But the Constitution makes the assumption that officers of the United States will act virtuously, and that when they don’t, the voter – be he a Senator in an impeachment trial or a citizen at the polling place – will act virtuously to remove them.
But as the villain once said in a Steven Seagal movie, “Assumption is the mother of all f-ups.” There is no virtue in voting to acquit in your party that which you would convict in the other. But it happens. There is no virtue in going into a polling place either ill-informed or letting your wallet, alone, cast the vote. But it happens. Where the system the founders left us fails, it is precisely because we lack the virtue to do the right or because we possess either the hubris or intellectual laziness to dismiss that which they so ably built.
I leave you with one more thing before I discuss a bit of the cases just decided. We all know and revere the name of our first executive, George Washington. But do any of us know the name of our first Chief Justice of the Supreme Court? The answer is John Jay, the same Federalist author we most often forget. Perhaps that is fitting proof of just where the Judiciary stands relative to the other branches. Had only I known this to tell Mr. Zito in seventh grade.
The common thread in each of the cases below is that while there is a legal argument perhaps rightly decided, perhaps not, we are left with a less-than-ideal outcome that begs the question, now what? And the ‘now what’ questions are for the most powerful group in our system of government…the people.
Trump v. Barbara
Trump v. Barbara is the case that challenged President Trump’s Executive Order 14160 regarding birthright citizenship. The outcome was 6-3, with the three liberal justices joining two conservative justices in full and one other conservative justice in part to reaffirm that all persons born in the United States are US citizens. I am always intrigued when the outcome isn’t completely along philosophical divisions. For right or for wrong, it always makes me believe that real work was done to interpret the law rather than real work being done to find the rationale for a preferred outcome.
Barbara was well decided but probably wrong for our nation. It was rightly decided because the words of the 14th Amendment to our Constitution are as clear as they may be broad – “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” We know historically that this was a Reconstruction amendment made to enshrine into law that the freed slaves were indeed citizens of the United States and that all people are guaranteed equal protection under the law. But the text doesn’t add the qualifier that this was a one-time thing to address a one-time moment in history that may thereafter be disregarded.
Try as some might, a child of an illegal immigrant born here was born here. Try as some might, both that child and those parents are subject to the “jurisdiction thereof.” If they not be, they may argue after committing a homicide here that we’ve not the jurisdiction to try them. But unlike the child of a diplomat, they cannot. And try as some dissenting justices did in dissenting, there isn’t an intent of domicile loophole anywhere in the text.
But the decision is wrong for our country because it incents the very behavior we seek to restrict. And if jumping the line to enter the country illegally comes with the prize of automatic citizenship for one’s future child – and all the benefits that entails – then jumping the line has an increased value that may justify increased risk to get here. Furthermore, though I realize birth tourism only accounts for 5,000-10,000 of the 3.5 million births in the US per year, granting citizenship to the child of someone passing through fundamentally makes no sense and is a slap in the face to those waiting patiently to enter legally.
The “right of the soil” may be the common law our system is based upon, as the majority opinion exhaustively discusses, but if it is, it incents being on this soil by whatever means necessary. And is that what we want or need? A nation cannot be secure without knowing who or what is coming across its borders. And while diversity and the enormous contributions of immigrants to our country cannot and should not be overlooked, that doesn’t mean we should accept illegal immigration. We have legal pathways. Practically speaking, there is an argument to be made for the need to get our house in order before opening it up more than necessary anyway; for example, we already have a shortfall of millions of units of housing in this country and we have a shortfall already between taxes raised and government expenditures of $2 trillion per year.
Using the 14th, what was an early step in undoing the original sin of our country, to incent and reward people who come here illegally “devalues that citizenship,” as Justice Thomas said closing his dissent.
The ‘now what’ of this case is challenging. Because the Constitution is the supreme law of the land, Congress can’t just write new law to undo birthright citizenship. It would take a Constitutional amendment. The now what is further complicated because if that amendment doesn’t come with some sort of exemption for those born here already, undoing birthright citizenship for the children of illegal immigrants would create a whole class of people with no citizenship at all, opening the door to all the practical and systemic issues that would trigger.
If we could only find our way to reasonable consensus that (1) the border is now closed to illegal immigration and must remain that way regardless of party in the White House, (2) we are passing a Constitutional amendment to remove birthright citizenship for the children of illegal immigrants and birth tourists entering the country after the date of ratification, (3) we will reengage in the world community to encourage the opportunity abroad that limits the attractiveness of migration, and (4) yes we are establishing some pathway for those here illegally who haven’t committed any crimes, not to reward them, but rather to bring them out of the shadows and into full compliance with and payment into our system. After all, a legal employee seeking preventative medical care under his employer’s health insurance plan is far less of a burden on taxpayers than an illegal immigrant seeking emergent care with no insurance. And besides, we as country, with all our technology and might, were complicit in their crime of entering illegally because we left the door open with a note saying come on in.
West Virginia v. B.P.J.
West Virginia v. B.P.J. (consolidated with Little v. Hecox), is a case that challenged state bans barring transgender females from playing on girl’s or women’s sports teams. B.P.J. is a student athlete, born male who identifies as female, who was seeking to play on a girls’ team. The Court unanimously agreed, 9-0, that West Virginia banning her from doing so did not violate Title IX (the federal law that prohibits discrimination on the grounds of sex in any education program and mandates schools provide male and female students with equal opportunity in sports).
But where the justices were not unanimous in B.P.J. was on the issue of equal protection under the law. The three liberal justices would have sent that back down for further fact finding, particularly because in this case the petitioner had been taking puberty blockers since an early age, so arguably had never received the benefits that would provide an unfair advantage over or safety concern in competition with female athletes. The question posed by those justices is, would the government still have the resultant interest necessary to preclude someone similarly situated to a girl from a girls’ team?
But even if the Court got this ruling correct based on the law, and even if it is right to protect in sports the safety of and fairness for those born female, is this decision where Congress, or we the people, should leave it? Can the answer really be we are going to exclude 3.3% of the minor population and growing from the life lessons of sport? Can the answer really be to tell someone who has taken puberty blockers, is transitioning, or has transitioned, to just go play with the boys and be in that locker room? What about their safety? The ‘now what’ questions on this issue are particularly important when speaking of facilities or teams funded by public tax dollars. Public dollars cannot exclude. And public dollars must think about how public buildings with shared facilities should be laid out moving forward.
The Declaration of Independence announces to the world that all have a right to the pursuit of happiness, not just those we understand. And the Constitution promises all our citizens equal protection under the law. The pesky thing about promises is that they often require work to keep.
Trump v. Slaughter
Trump v. Slaughter overturned the longstanding Humphrey’s Executor decision. Humphrey’s essentially said that Congress had the ability within the Independent Federal Agencies it created under the Executive branch to limit the president’s ability to fire someone. In essence, the president would have to have cause to do so. He couldn’t just fire someone for strictly political reasons. Slaughter, by a margin of 6-3 along philosophical lines, overturned that, saying that with the exception of the Federal Reserve, the president may indeed fire someone without cause.
Chief Justice Roberts, writing for the majority, may well have accomplished in one paragraph what ultimately took him 36 pages. The argument goes like this. The Constitution says the president “shall take Care that the Laws be faithfully executed.” To that end he should have the team he believes is necessary to accomplish that mandate. For the movie buffs among you, the argument is akin to the umbrage Jack Nicholson takes in A Few Good Men.
“I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide and then questions the manner in which I provide it. I would rather that you just said ‘thank you’ and went on your way.”
Great speech aside, Jack’s character ended up in jail.
Chief Roberts summed up the majority’s argument this way, “Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work.” And while I do enjoy a nice turn of phrase, this is another situation where what may be legally arguable may not be best for our country.
It is true that there is no explicit mention in the Constitution of the president needing congressional approval to fire someone. There is some talk of it in the Federalist Papers. In fact, both the opinion of the court and the dissent refer to Federalist #77 where Hamilton says, “The consent of that body (the Senate) would be necessary to displace as well as to appoint.” But it won’t surprise you that there is disagreement between the opinion of the Court and the dissent as to whether ‘displace’ means to replace or to remove. There was also much debate in the early days post ratification of the Constitution as to whether congressional approval was necessary to remove an officer. It was never adequately solved then either.
The Slaughter decision wasn’t a surprise; the conservative majority has been nipping at Humphrey’s heels for a while now. This is yet another example proving that the concept of Stare Decisis – the idea that the Court should give deference to its own precedents when deciding cases – doesn’t exist in the real world. It’s merely a cocktail party and senate confirmation hearing cliche that is so quick to be tossed on the chamber’s floor that it’s really quite embarrassing. In the interview with Justice Breyer that I mentioned earlier, he joked that the only decision of the Court that is safe from overturning is Marbury v. Madison…you know, the one where they gave to themselves the power of judicial review in the first place!
Chief Roberts spends much time off the bench talking about and worrying about the legitimacy of the Court in the eyes of the public. If he is truly concerned about that, perhaps he should give Stare Decisis a bit more attention, because he has presided over some fairly big reversals that do give the public the sense that the Court makes it up as they go based upon their political bent.
As I say often in this space, Government done well should provide stability and predictability. And continuity is stability. The office of the president turning over every four years isn’t stability. A congressional seat turning over every two or a senate seat every six is not stability. Civil servants at work at agencies created by a Congress that then engages in oversight upon those agencies is stability. In this decision though, the majority in essence said that a president’s preference or caprice may be more important than continuity and predictability. But their carving out of the Federal Reserve loudly acknowledges that firings of whimsy can indeed create instability.
The argument that an executive branch agency is under the purview of the president and the president may employ who he chooses, subject to Senate confirmation where mandated, makes complete sense on its face. But we are a system based on the healthy friction of checks and balances. Hence, Congress creates the agency. The Senate advises and consents on many officers of the executive branch. And Congress provides an oversight function. Why then cannot Congress preclude firing without cause in the agencies it created? Also keep in mind that the president already gets to decide which commissioner at each of these agencies he wants to act as the chair. And typically, the person replaced as chair then resigns as opposed to staying on. So practically speaking the president gets the chair and gets to nominate someone else to replace the outgoing chair. If you’re getting the sense that this case is more to do with one man stomping his feet and trying to get his way, well then, we’re on the same page.
So back to the discussion of what is good for our country…does it necessarily follow that because a country voted in a president with 49.8% of the vote, based largely on wanting more affordability and slower social change, that that necessarily means we are dissatisfied with the course at the Environmental Protection Agency or Federal Trade Commission or Nuclear Regulatory Commission? It may, but it doesn’t say please give us instability by turnover. It doesn’t say erase institutional knowledge and give us a commissioner from amongst one of your dozens of private criminal attorneys to run an agency of the federal government.
To be clear, though, some people are just really bad at their jobs. And those people can be fired for cause – “inefficiency, neglect of duty, or malfeasance in office” – even under Humphrey’s. If an Executive can’t find a for-cause reason, he isn’t trying hard enough.
National Republican Senatorial Committee v. Federal Election Commission
National Republican Senatorial Committee v. Federal Election Commission is a case in which Republicans including JD Vance argued that limiting the amount of money a political party can spend in coordination with one of its candidates violates the Constitutional right of free speech. I’ll ignore how dumb it is that Vice President JD Vance was considered to have legal standing for this case because he still has a campaign committee and a “Statement of Candidacy” on file indicating he intends to run for Senate in 2028. Anyway, he prevailed by a 6-3 decision, also along philosophical lines.
This is another in a long line of cases, like Citizens United, that removes guardrails on money in politics. The majority opinion was written by Justice Kavanaugh and makes about as much logical sense as his “I like beer, Senator” answers at his confirmation hearing. It goes a little something like this. Free speech may not be abridged. Money needed for speech. Money can’t be abridged. Therefore, parties may spend as much as they want. And so, for some reason, that means a party may coordinate with the candidate on that spending. Oh, and Stare Decisis again bad.
The opinion of the Court is tortured and quickly casts aside any form of malfeasance from political spending other than a direct quid pro quo malfeasance. And it touts the current state of our technological abilities to look up and sort through the contributions and expenditures that must be reported to the FEC as some sort of panacea that would keep bad actors from acting badly, simply because citizens can look things up after the fact. And it places too high a regard on the existing individual contribution limits as a backstop.
The well written and clear dissent by Justice Kagan, does a good job of laying out the gray that is money in politics, explaining how the political machine can do an end-around what rules are in place, essentially nullifying the intent of individual contribution limits. I will not regurgitate what she clearly lays out. But think about it this way, is it a limit any longer if Elon Musk can only give a candidate $3,500 per election yet he can give the party $1,000,000 with a wink that the party can then reroute this money to the candidate by forming a shared committee? Of course it isn’t. Even if the party gives the candidate $20 of that $1,000,000, Musk has given that candidate $3,520, which is above the legal limit.
Kavanaugh quotes another case in support of the Court’s decision, saying the “concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Agreed. But this decision enhances the speech of candidates that fall completely in line with their party while restricting the voices of those candidates who do not. But Kavanaugh dismisses this argument as not possible. Well Mr. Justice, I ran for office and I can tell you it is 100% possible.
The real danger of this decision, and a point largely ignored is the coordination piece. The Court’s decision now allows a party to coordinate directly with the individual campaign to which it is giving. In other words, Candidate A, here is your $500,000 to support the ad you WILL be making to say you support this plank of our platform we want you to support. Isn’t that quid pro quo, Justice Kavanaugh? Where in that arrangement does one suspect our future representatives will be representing their constituents and their districts instead of their national party? Where in this scheme do we suppose a senator will have the moral courage to vote in a way that may benefit his district but aggrieve his party? Does one not believe that the party will choke off reelection funds? Of course they will. And so members of Congress will do the national party’s bidding 100% of the time.
The majority’s opinion in these cases ignores the fact that by ostensibly increasing the money flow to some, it shuts out other candidates who don’t have access to those big dollars. Unlimited money for those who have it necessarily drowns out the speech of those who haven’t got it. But the majority only seems concerned with some speech. It ignores that money can buy so much speech for some that it robs others of theirs. This decision and the others that preceded it will rob us both of quality and quantity of candidates moving forward. And it serves to concentrate power in the hands of the few, the same problem the founders tried so desperately to avoid.
And lastly, how does forbidding coordination between a party and a candidate in any way limit the freedom of either to say whatever they want? If the Court wants to leave the impression it isn’t political, it may be best for it not to aid and abet the party system. This is an abominable decision. It’s judicial activism and it’s wrong for the country. And it’s violative of our founder’s distrust of parties, or factions as they called them.
We seem to have forgotten, whether it is in a president’s personal financial disclosure or in campaign finance regulation that the appearance of impropriety is impropriety. And guardrails once crashed into, shouldn’t be removed, they should be rebuilt to keep the next car out of the damn ditch.
“But there we are and now we go on.”
