> DEA, ATF, FDA, OSHA, CFPB, CDC, EPA, and FCC would all tend to disagree with this assessment.
They wouldn't, at least not to a court's face. You mention "Chevron deference" below, but the whole idea behind Chevron deference is that agencies are exercising executive discretion in enforcing the law, not making new ones.
> There IS a separation of powers and checks and balances. Congress even passed the "congressional review act" in 1996 which allows them by a majority vote to undo an agencies decision if they feel they've stepped too far.
The Constitution gives the power to make laws to Congress. Full stop.
> Rather than apply straight forward and obvious rules that have been around for at least 30 years (Chevron deference), the supreme court has decided to take a politically activist route and instead decide cases based on their own political leanings.
Judges in the mid-20th century engaged in massive political activism to rewrite the Constitution from whole cloth. Undoing that tomfoolery is not itself "political activism."
> You can predict, like clockwork, how the justices will vote on any case with any sort of political implication based on who appointed them. Isn't that distressing?
It distresses me that you can predict how liberal justices will vote on any significant case. It brings me great relief that conservative justices are full of surprises. Just in the last few years, ACB was supposed to overturn Obamacare (she voted to uphold it), Gorsuch and Kavanaugh were supposed to find that the Civil Rights Act doesn't protect sexual orientation, etc.
There's a thread circulating on twitter about the 24 worst decisions from this SCOTUS term, and, because I don't like Twitter threads, I took the time to skim all the decisions. So this stuff is fresh in my head.
You're being unfair to the liberal justices here --- there are surprising votes from liberals on QI cases (Rivas-Villegas, Talehquah), habeas (Brown v Davenport), state secrets (Zubaydah), social spending (Vaella-Madero), and immigration (Aleman Gonzalez). You cannot simply predict a liberal justice's opinion from their ideological inclinations. Not even Breyer, who is the most boring liberal justice (he wrote the opinion on Zubaydah).
Meanwhile: Gorsuch is often surprising --- not just on the Native American sovereignty cases, but also on habeas (Shoop) and immigration (Patel, an excellent Gorsuch dissent).
The other conservative justices? Not so much! In particular: you can reliably predict Alito and Thomas, the two most blinkered justices on the court regardless of ideology.
By the way, and apropos nothing here, everyone should read Egbert v Boule, not just because it's absolutely the most ludicrous (and funny) case you'll ever read about that reaches SCOTUS, but because it's a far-reaching and bad decision.
You’re right I shouldn’t have painted with such a sweeping brush. Kagan and RBG were plenty rigorous. But Breyer? All of his decisions read like hand waving to me. I agree Alito can be quite ideological, as the first draft of Dobbs showed. But Thomas is one of the clearest thinkers on the Court.
I think an overlooked aspect in all of this is how dramatically judicial philosophy has changed in the past few decades, across the board. Breyer, Kennedy, O’Conner, and Alito were from a generation that believed in the notion of judging as dispensing justice from on high. Younger folks like Kagan are uncomfortable with that even when though they seek to preserve liberal precedents built on that sort of judging.
The result of that is that younger conservatives find these older precedents incomprehensible, and younger liberals have a tough time defending them on the merits. Egbert v. Boule is a good example. I think the dissent probably had the better argument if we think of Bivens as anything more than an aberration that ought to be limited to its facts. But I struggled in reading the dissent to find any reason to treat Bivens as correctly decided. I remember being skeptical of Bivens when I first encountered it as a 1L, but to my recollection the opinion at least offset the tenuous reasoning with flowing judicial rhetoric. Sotomayor’s dissent, written in a modern analytical style, doesn’t even accomplish that.
They wouldn't, at least not to a court's face. You mention "Chevron deference" below, but the whole idea behind Chevron deference is that agencies are exercising executive discretion in enforcing the law, not making new ones.
> There IS a separation of powers and checks and balances. Congress even passed the "congressional review act" in 1996 which allows them by a majority vote to undo an agencies decision if they feel they've stepped too far.
The Constitution gives the power to make laws to Congress. Full stop.
> Rather than apply straight forward and obvious rules that have been around for at least 30 years (Chevron deference), the supreme court has decided to take a politically activist route and instead decide cases based on their own political leanings.
Judges in the mid-20th century engaged in massive political activism to rewrite the Constitution from whole cloth. Undoing that tomfoolery is not itself "political activism."
> You can predict, like clockwork, how the justices will vote on any case with any sort of political implication based on who appointed them. Isn't that distressing?
It distresses me that you can predict how liberal justices will vote on any significant case. It brings me great relief that conservative justices are full of surprises. Just in the last few years, ACB was supposed to overturn Obamacare (she voted to uphold it), Gorsuch and Kavanaugh were supposed to find that the Civil Rights Act doesn't protect sexual orientation, etc.
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