By David B. Rivkin, Jr., and Jason Snead

August 1^st, 2022, in the Wall Street Journal

Marc Elias, the leading Democratic election lawyer, complains that “a dangerous theory will have its day in court” this fall. That’s rich—he was instrumental in bringing it there by litigating the case that raises it. But his dire warnings have attracted plenty of support. The headline of a Washington Post op-ed by a trio of legal scholars blares the threat of a “body blow to our democracy.”

Moore v. Harper is the product of a nationwide campaign, led by Mr. Elias, to mow down state election laws that make it easy to vote but hard to cheat. That effort is a large part of the reason the Supreme Court felt the need to weigh in.

After North Carolina gained a House seat in the 2020 census, the state’s Republican-controlled Legislature drew a new congressional map. Mr. Elias and his clients petitioned state courts to toss out that map as unduly partisan in violation of the state constitution—a legal theory the North Carolina Supreme Court had rejected as unworkably open-ended in 2015.

This time, citing a handful of clauses plucked seemingly at random from the North Carolina Constitution, the state supreme court invented a new, judicially enforceable prohibition on so-called partisan gerrymandering. It used this newfound power to toss out the Legislature’s map and replace it with one of its own design, along the lines Mr. Elias’s experts proposed.

Which brings us—and Mr. Elias—to the U.S. Supreme Court. The U.S. Constitution’s Elections Clause provides that the “manner” of conducting congressional elections must be “prescribed in each state by the legislature thereof.” As Justice Samuel Alito has noted, the clause “specifies a particular organ of a state government.” It doesn’t assign this authority to the state as a whole. That necessarily limits the power of state courts and executive-branch officials to override lawmakers’ handiwork.

Until about a decade ago, state legislatures were in the driver’s seat on election laws. But as Republicans took majorities in state capitals around the country, Democrats bowed out of the legislative process, turning to state officials and state courts instead. Through backroom deals, they persuaded election officials to drop ballot-integrity regulations, open up drop boxes, and loosen deadlines. When deal-making didn’t work, they asked state courts to rewrite election laws wholesale, typically based on vague language in state constitutions like the declaration in North Carolina’s constitution that “all elections shall be free.”

The pandemic accelerated this process in 2020. Through settlements and litigation, Mr. Elias and his colleagues wielded a massive budget to sustain a campaign of litigation that forced states to adopt Democratic election-law priorities against the will of the legislature. Covid became an excuse to upend the law, but the end result was widespread chaos driven by ever-shifting rules intended to benefit one side.

Harper v. Hall, as the North Carolina case was styled in state court, was the next logical step. If state courts are willing to draft their own election codes, why not their own maps too? Never mind that years of litigation had proved, as the U.S. Supreme Court observed in Rucho v. Common Cause (2019), another case from North Carolina, that there is no “clear, manageable, and politically neutral” legal standard for partisan-gerrymandering claims.

That was a federal case, so it didn’t address the limits on state judges’ power. Moore gives the justices an opportunity to do so, with respect to voting rules as well as redistricting. The idea that honoring the Constitution’s limits on state judicial power is a threat to democracy is risible. When state legislatures make laws governing federal election law, their power is subject to all the limitations of the U.S. Constitution and federal statutes, including the 15th Amendment and the Voting Rights Act, which prohibit racial discrimination.

The shrillest critics of the appeal in Moore assert that state legislatures simply can’t be trusted and have to be closely supervised by state supreme courts. They point to Donald Trump’s failed attempts to work state legislatures to swing the vote in his favor following the 2020 election, by disregarding the Election Day result and appointing pro-Trump electors. Yet no state legislature did Mr. Trump’s bidding. No state election law on the books today gives state legislatures an open-ended power to disregard the popular vote and appoint presidential electors, and there’s no indication of any serious attempt to enact such a law.

Further, it would violate federal law. Like the Elections Clause, the Electors Clause, which governs presidential elections, gives state legislatures power to set the “manner” of choosing presidential electors. But that power is tempered by Congress’s authority to set “the time of choosing the electors.” Federal law plainly states that presidential electors “shall be appointed” on Election Day. So although a state legislature has broad leeway in setting the rules for the presidential vote, it can’t change the rules, or nullify the voters’ decision, after Election Day. Moore won’t change that.

Moore’s real threat is to partisan election lawfare and the gravy train that the Elias Law Group, 70 attorneys strong, is riding. The real threat to democracy is cynical “voting rights” litigation brought to sway election outcomes and the many ways that it undermines the administration of the vote and public confidence in the electoral process. And what could be fairer or more neutral than following the Constitution, or more democratic than leaving the matter to elected lawmakers?

Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush. Mr. Snead is executive director of the Honest Elections Project.

Source: https://www.wsj.com/articles/marc-elias-curious-idea-of-democracy-moore-v-harper-court-state-judges-election-law-gerrymandering-legislature-11659380162

By David B. Rivkin, Jr., and Mark Wendell DeLaquil

July 11, 2022, in the Wall Street Journal

In a case last month upholding religious liberty, Justice Neil Gorsuch announced that an old precedent had ceased to be good law: “This Court long ago abandoned Lemon.” One day the Supreme Court may issue a similarly belated death notice for Chevron v. Natural Resources Defense Council, the 1984 ruling that vastly expanded the power of administrative agencies. If so, the beginning of the end will have come on the closing day of this year’s term, when the high court decided West Virginia v. Environmental Protection Agency.

In Chevron, the justices held that when Congress enacts an “ambiguous” statute, courts are obliged to defer to any “reasonable” interpretation offered by an executive-branch agency. The Chevron doctrine assumes that agency personnel have expertise that judges lack and that agencies are more democratic than courts because the former answer to the president. Chevron deference allowed the EPA to set national carbon-dioxide standards, the Transportation Department to prescribe automobile safety features and numerous other agencies and departments to regulate virtually every aspect of American life.

But this approach corroded democratic accountability by freeing lawmakers from the duty to legislate clearly. West Virginia is an important step in returning responsibility for solving the nation’s problems where it belongs, to Congress. It will shape resolution of the key policy issues in the remainder of the Biden administration and beyond.

Under Chevron, as Chief Justice John Roberts noted for the court in West Virginia, the absence of a political consensus to address difficult problems led to undertake extravagant regulatory efforts. Among them were the Centers for Disease Control and Prevention’s attempting to dictate housing policy, the Occupational Safety and Health Association’s driving vaccination policy, and, in this case, the Environmental Protection Agency’s creating national energy policy by updating the Obama administration’s anti-fossil-fuel Clean Power Plan.

In these cases, the agencies acted outside their expertise and certainly didn’t promote political accountability. The legislative process of political compromise was bypassed and democracy subordinated to government lawyers stalking dusty library shelves in search of vague and outmoded statutes. The West Virginia decision buttressed legislative authority yet led to strident criticism from legislators, dramatizing how comfortable Congress has become in abdicating its responsibility for difficult policy decisions.

Chevron also dramatically weakened the judiciary’s ability to check agencies’ regulatory overreach. Before 1984, the judiciary took a “hard look” approach in assessing the legality of federal regulations. Chevron was more of a rubber stamp. Judges blessed specific regulations and countenanced agency actions that Congress had never authorized. It made a mockery of Chief Justice John Marshall’s declaration in Marbury v. Madison (1803): “It is emphatically the duty of the Judicial Department to say what the law is.”

West Virginia limits Chevron by fleshing out the “major questions doctrine,” a longstanding judicial presumption that when an administrative agency asserts authority over questions of great economic and political significance, it may act only if Congress has clearly authorized it to do so. Or, as the Constitution puts it: “All legislative powers herein granted shall be vested in a Congress of the United States.

West Virginia’s critics focus on its policy impact because its legal merit is so compelling. By proscribing ambiguous congressional delegation where it matters most, the major questions doctrine re-establishes judicial authority and legislative responsibility. Absent a clear statutory delegation of the power to regulate, the executive branch can’t regulate at all. Where statutory language is clear enough to grant regulatory authority, it should eliminate substantial ambiguity about how that authority can be exercised. This effectively strips agencies of much of their regulatory willfulness, compelling them to regulate only as Congress intended. The domain of Chevron deference is limited to filling in the interstitial details of statutes in which Congress has decided the policy stakes.

West Virginia and the major questions doctrine are certain to surface again soon. Take the Securities and Exchange Commission’s proposed climate-change disclosure regulations. The SEC has a statutory directive to protect investors, facilitate capital formation, and maintain the efficient operation of capital markets. It has neither the expertise nor the statutory authority to regulate greenhouse-gas emissions. In light of West Virginia, the SEC ought to withdraw its proposal.

The Federal Trade Commission is contemplating a regulation that, without any clear statutory authority and departing from well-established FTC practices, purports to ban mergers even when no anticompetitive harms are visited on consumers. The Education Department proposes to eliminate basic mandatory procedural due-process requirements, such as a live hearing and cross-examination, in Title IX regulations that govern disciplinary procedures in universities.

Going forward, the first question in any important case concerning agency power is whether Congress actually intended for the agency to be regulating at all, not whether agency attorneys were clever enough to find a vague statute to justify a new rule. The power of the administrative state is certain to recede, bolstering democratic accountability, economic growth and liberty.

Mr. Rivkin was lead outside counsel in the case brought by 27 states challenging the Obama administration’s Clean Power Plan, in which the Supreme Court issued a 2016 stay. Mr. DeLaquil is lead counsel for Westmoreland Mining Holdings, a party to a case the court decided last month with West Virginia v. EPA.

Source: https://www.wsj.com/articles/no-more-deference-to-the-administrative-state-west-virginia-v-epa-chevron-major-questions-john-roberts-regulation-democracy-congress-11657475255

By David B. Rivkin, Jr., and Jennifer L. Mascott

25 June 2022 in the Wall Street Journal

The most anxiously awaited Supreme Court decision in decades is also the least surprising. An act of institutional sabotage leaked Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization nearly eight weeks in advance. On Friday a five-justice majority definitively overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), affirming states’ authority to regulate abortion. In so doing, the court reclaimed its legitimate constitutional role and signaled a willingness to re-examine precedents that strayed across the line between law and policy or misconstrued important constitutional provisions.

But the draft opinion’s leak damaged the court, which requires the justices to collaborate in confidence. The leaker’s purpose seems obvious: a last-ditch effort to mobilize public opinion and activist protesters in hope of intimidating the justices into rethinking their position.

This breach was shocking but probably shouldn’t have been surprising. In the past several decades, and particularly since President Trump began appointing justices, the court has faced mounting opposition, including pointed threats against individual justices by members of Congress. Supreme Court nominations, especially by Republican presidents, have become ideological and partisan wars, sometimes featuring ugly uncorroborated allegations of personal misconduct. Sending mobs to threaten justices and their families at home was only the latest escalation.

These attacks on the court are part of a concerted campaign to undermine the legitimacy of American institutions and norms and the Constitution itself. The court’s most vociferous critics either don’t understand its proper role or, more likely, reject it. This was evident in the national debate over the leaked draft of Justice Alito’s opinion, which focused entirely on the policy and political implications of overturning Roe rather than its legal basis.

In fact, Dobbs imposes no policy. It simply states that abortion is not among those individual rights protected by the federal Constitution. The result is that this contentious issue has been returned to the state legislatures, which had primary responsibility for setting abortion policy until the court imposed its own views on the country in 1973.

It was at that time, and not today, that the justices overstepped their boundaries and ensured that the court would become the focus of political contention for half a century. Dobbs belatedly corrects that error by recognizing that the federal judiciary’s constitutional role is merely to decide cases and controversies, based upon the established tenets of law grounded in the Constitution, federal statutes and common law. Policy decisions properly belong to the elected branches of federal and state government.

Congress’s approval ratings are abysmally low, as are President Biden’s, and some critics have claimed the justices should be concerned that the Supreme Court’s ratings are declining too. But the federal judiciary is a countermajoritarian institution. The court does its most important work when it renders decisions that are unpopular but legally correct.

It bears emphasizing that Dobbs’s detractors lob objections that don’t reflect the true nature of the opinion. They claim the justices have shown a disregard for stare decisis, the doctrine of respecting precedent. In fact, the decision relies on the precedent in Washington v. Glucksberg (1997), which concluded that there is no constitutional grounding for any claimed right that is neither enumerated in the Constitution nor deeply rooted in the nation’s history and tradition.

Dobbs also marks a path toward restoring the constitutionally prescribed diffusion of powers among governmental branches, undergirded by a system of checks and balances. This uniquely American structure of government is the primary safeguard of individual liberty.

In the coming years, the court will face a series of momentous opportunities to perform its constitutional responsibilities. It will be called on to continue re-examining Congress’s authority to dictate state policy by attaching strings to funding measures. And in a series of cases over the past 30 years, the justices have issued rulings restoring some of the proper balance between the federal government and the states by reaffirming that there are limits on Congress’s authority to regulate interstate and foreign commerce. Those limits may now be tested depending on whether Congress decides to refederalize abortion by legislation either requiring or limiting its availability.

The court will also face key questions involving the relationship between Congress and the executive branch, such as the permissibility of broad congressional delegations of policy-making power to regulatory agencies and statutory limitations on the president’s constitutional duty to manage federal bureaucracies.

The extent to which executive agencies can adjudicate matters involving significant private-property and liberty interests without close judicial supervision is another question that the court likely will revisit. The justices are repeatedly being asked to resolve questions about whether agencies have overstepped their statutory authority to regulate, particularly in areas involving major policy questions. In the oft-repeated words of Chief Justice John Marshall : “It is emphatically the province and duty of the Judicial Department to say what the law is.” The burgeoning federal bureaucracy too often arrogates this power to itself, often overlooking statutory and constitutional constraints.

The Supreme Court’s legitimacy therefore is of utmost importance. The decision in Dobbs suggests a majority committed to the court’s proper role, which is to decide cases independent of political and popular winds.

Mr. Rivkin practices appellate and constitutional law in Washington. Ms. Mascott is an assistant professor at Antonin Scalia Law School and a former clerk for Judge Brett Kavanaugh and Justice Clarence Thomas.

Source: https://www.wsj.com/articles/supreme-court-reclaims-legitimacy-abortion-roe-v-wade-dobbs-v-jackson-women-health-reproductive-rights-life-originalism-justice-alito-11656084197

By David B. Rivkin, Jr., and Andrew M. Grossman

April 24, 2022, in the Wall Street Journal

Pennsylvania lawmakers in 2019 decided to allow mail-in voting for the first time. They enacted a statute providing that “a completed mail-in ballot must be received in the office of the county board of elections no later than eight o’clock P.M. on the day of the primary or election.” In 2020 the state Democratic Party went to court, arguing that in light of the Covid pandemic, the deadline “results in an as-applied infringement” of the right to vote.

The Democrat-dominated Pennsylvania Supreme Court—its members are chosen in partisan elections—sided with the party and ordered a deadline extension, even as it acknowledged the statutory language was clear and unambiguous. The U.S. Supreme Court declined to hear an appeal, so the 2020 election was conducted under this and other new, judge-imposed rules.

Usually there’s no reason for the high court to review a state-court decision about state law. But election law is different. The U.S. Constitution mandates that state legislatures make the laws governing federal elections for Congress and the presidency. The Pennsylvania ruling was therefore unconstitutional. But the justices in Washington, perhaps chastened by the enduring political controversy over Bush v. Gore (2000), seem reluctant to take up such cases close to an election. Fortunately, they will soon have an opportunity to address the issue and to avert the possibility of an electoral meltdown in 2024.

Pennsylvania wasn’t alone in 2020. Faced with Republican control of many state legislatures, the Democrats and their allies took advantage of the pandemic to upend that year’s voting process. Longstanding wish-list items like near-universal voting by mail, ballot “harvesting,” drop boxes, extended deadlines, and loosened identification and signature-match requirements came to pass in much of the country, often by state court order.

The pandemic disruption may be behind us, but litigation over election rules continues. One reason is the success of the Democrats’ 2020 efforts, which their current cases treat as setting a new legal baseline. Returning to ordinary pre-pandemic procedures, they claim, amounts to unlawful “voter suppression.”

But there’s another reason for the state-court litigation explosion: redistricting after the 2020 Census. If state judges are willing to second-guess voting laws, why not the maps too? New maps are often litigated, but what’s different this time is the number of cases asking courts to toss out alleged partisan gerrymanders. The U.S. Supreme Court closed the door to such claims under the federal Constitution in Rucho v. Common Cause (2019), reasoning that there was no “clear, manageable, and politically neutral” standard for courts to apply. The same objection applies to suits brought under state law, but Rucho didn’t address that question.

So they proliferated. Many states where Democrats could pick up House seats with a different map have faced lawsuits based on open-ended state constitutional provisions, such as North Carolina’s proclaiming “all elections shall be free.” Several states’ top courts have tossed out legislature-enacted maps; the North Carolina justices even authorized a lower court to hire its own mapmakers. Republicans won state-court decisions against Democratic gerrymanders in Maryland and New York state.

None of this passes constitutional muster. State courts can interpret and apply laws governing federal elections and consider challenges to them under federal law, including the Constitution. But they have no authority to strike those laws down under state constitutions, let alone a freestanding power to contrive their own voting rules and congressional maps. The U.S. Constitution often assigns powers and duties to the “states” generally, but Article I’s Elections Clause directs that the “times, places and manner” of conducting congressional elections shall “be prescribed in each state by the legislature thereof,” unless overridden by Congress. The Electors Clause similarly vests the “manner” of choosing presidential electors in “the legislature.”

In McPherson v. Blacker (1892), the U.S. Supreme Court recognized that the Electors Clause “leaves it to the legislature exclusively to define the method” of choosing electors and that this power “cannot be taken from them or modified by their state constitutions.” In State Legislature v. Arizona Independent Redistricting Commission (2015), it held that “redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking.”

Still, it’s no wonder plaintiffs and state judges have felt emboldened to buck these limitations. The decision of a state supreme court can be appealed only to the U.S. Supreme Court, which has shied away from such cases. Around the same time the justices declined to hear the 2020 Pennsylvania case, they turned back a request to block North Carolina officials from altering legislatively enacted mail-in ballot deadlines. This year, they denied emergency requests to block judge-made maps in North Carolina and Pennsylvania from being used in November.

Election-law cases present unique timing considerations, given the potentially disruptive consequences of changing laws or maps with an election approaching. When courts make changes weeks before a filing deadline or Election Day, the justices’ ability to right the wrong is severely constrained. There’s rarely a serious basis to press the issue after votes have been cast. Those circumstances apply in most election-law cases.

But unlike state-court orders meddling with voting procedures, which typically apply to one election only, congressional maps remain in place until they’re altered, which usually isn’t for a decade. So there’s no timing issue to prevent the court from hearing a redistricting case.

Justices Samuel Alito, Clarence Thomas and Neil Gorsuch dissented from last month’s denial of the North Carolina stay application, arguing that the case was a good vehicle to consider the power of state courts to rework federal-election laws. Justice Brett Kavanaugh wrote separately to say that the court should take a case raising the issue, but this one came too close to the 2022 election. North Carolina’s House speaker has petitioned the court to take the case in its next term. If it does, a decision would likely come next summer, nearly a year and a half before the 2024 election.

The court’s failure to resolve this issue could spell catastrophe. If the 2024 presidential vote is close in decisive states, the result will be an onslaught of litigation combining all the worst features of the 2000 and 2020 election controversies. The court’s precedents in this area all point toward legislature supremacy but leave the door cracked enough for canny litigants, abetted by state judges, to shove it open and seize electoral advantage. To avoid a constitutional crisis, the justices need to articulate with clarity that state courts can’t rely on state constitutions or their own judicial power to alter either congressional redistricting maps or voting rules in federal elections.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/how-to-avert-a-2024-election-disaster-supreme-court-mail-in-ballot-drop-box-covid-election-rules-pennsylvania-new-york-north-carolina-11650820394

By Mike Luttig and David B. Rivkin, Jr.

March 6, 2022, in the Wall Street Journal

Regarding Thomas Berry’s letter “The Electoral Count Act’s Constitutional Role” (Letters, March 1): The ECA in its present form gives Congress essentially unfettered authority to invalidate state-certified slates of presidential electors. This is profoundly unconstitutional.

As we pointed out in our op-ed “Congress Sowed the Seeds of Jan. 6 in 1887” (March 19, 2021), the Framers, after much debate, determined to give Congress no substantive authority to select the president and vice president, except in the rare instance in which no candidate gains an Electoral College majority. The Constitution’s Electors Clause gives state legislatures plenary authority in choosing how to select electors. It allows Congress to determine only the day on which the Electoral College casts its votes.

The Framers’ choice reflected separation-of-powers considerations—if Congress could select the president, this would make the executive branch a subordinate, and not a coequal, branch. This would greatly augment the power of the federal legislature, which the Framers were determined to limit. Moreover, disputes over the selection of presidential electors involve a legal, not a political, discernment, that is appropriate for a judicial body. Congress is not a court.

To the extent that disputes about presidential electors arise, they can be resolved by courts. When state legislatures determine the manner of selecting electors, they exercise power granted to them by the U.S. Constitution, making these determinations a unique species of federal law. Hence, any disputes about specific selection of presidential electors involve the application of federal law. Since the power to determine what federal law requires rests with the judiciary, the federal courts have the primary responsibility to resolve these disputes.

To facilitate timely resolution, Congress should enact a statute providing for an expeditious judicial handling of any presidential elector-related challenges, with the Supreme Court as ultimate decision maker. The only power that Congress legitimately possesses here is a purely ministerial authority to receive the letters featuring certified state electoral results, have them opened by the vice president and counted in the presence of both houses. Congress should amend the Electoral Count Act to reflect this constitutional reality. Holding itself out as able to overturn the people’s will and choose the president will add to political polarization and inspire future violence, putting Congress itself at risk.

Mr. Luttig served as a judge on the Fourth U.S. Circuit Court of Appeals (1991-2006). He advised Vice President Mike Pence on the 2020 vote certification. Mr. Rivkin served at the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/amp/articles/congress-electoral-count-act-2020-overturn-elector-constitution-11646426616

By David B. Rivkin, Jr., and Andrew M. Grossman

February 28, 2021, in the Wall Street Journal

Judge Ketanji Brown Jackson is known as a capable, diligent and collegial jurist. Hers isn’t the straightforward ascent of most Supreme Court nominees. After a clerkship with Justice Stephen Breyer, she spent a decade as what she called a “professional vagabond”—a junior litigator at a Washington firm; an associate of Kenneth Feinberg, the lawyer known for administering compensation funds for victims of terrorism and other disasters; an assistant special counsel for the Sentencing Commission. She would be the first justice to have served as a public defender. One gets the reassuring sense that, like Clarence Thomas, Judge Jackson hasn’t had her sights trained on a Supreme Court nomination since law school.

The same could be said of Judge Jackson’s time on the bench. As a federal trial court judge in the District of Columbia (2013-21), she oversaw a docket consisting largely of run-of-the-mill employment disputes, contract cases, freedom-of-information actions, criminal prosecutions and the like. Her opinions are generally workmanlike, making it easy to discern the rare case that inspired her passion.

At the top of that list is her decision ordering then-President Trump’s former White House counsel Don McGahn to testify before a House committee investigating purported Russian interference with the 2016 election. Judge Jackson rejected out of hand Mr. Trump’s assertion of a kind of immunity from testimony recognized by the courts for well over a century. “Presidents are not kings,” she wrote. “This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

The decision rejects—and describes as “strident”—the government’s argument that parties generally need authorization from Congress to bring suit in federal court. Congress did authorize suits over Senate subpoenas, but not House suits. What may seem an arcane procedural point speaks volumes: Much judicial mischief has involved courts appointing themselves to exercise power and impose liability in the absence of any law. Judge Jackson’s rationale, echoing those of many Warren and Burger court decisions, is that the Constitution empowers courts to vindicate “intrinsic rights.”

Also revealing is Judge Jackson’s decision blocking a Trump policy expanding eligibility for “expedited removal” to aliens who have been in the country illegally for up to two years. The statute gives the Homeland Security Department “sole and unreviewable discretion” over expedited removal, which should give the courts nothing to review. Judge Jackson asserted that although the policy itself was unreviewable, she could pass judgment on the “manner” in which the agency made it. She found it lacking based on the agency’s failure to engage in notice-and-comment rulemaking and its failure to consider adequately the “downsides of adopting a policy that, in many respects, could significantly impact people’s everyday lives in many substantial, tangible, and foreseeable ways”—which would seem to be a consideration of policy, not manner. The U.S. Court of Appeals for the D.C. Circuit reversed this ruling.

Judge Jackson was also reversed in a case in which she sided with federal-employee unions challenging presidential directives to streamline collective-bargaining terms, limit time spent on union business during work hours, and make it easier to fire employees for misconduct or unacceptable performance. Her decision bends over backward to excuse the unions from the requirement that they bring disputes to the Federal Labor Relations Authority before going to court, and the D.C. Circuit reversed it on that basis. But her take on the merits also raises concerns. In her view, the government’s general duty to bargain and negotiate “in good faith” precludes the government from taking topics off the bargaining table (like the availability of grievance proceedings for outright employee misconduct). She acknowledged that position went well beyond the governing precedent. While that would be a boon to the unions, it would disable presidential control of the federal workforce to account for changing circumstances.

Since joining the D.C. Circuit in June 2021, Judge Jackson has handed down only two opinions on the merits, both in the past month. The first, in another federal-union case, is notable. Siding again with the union, Judge Jackson rejected an FLRA decision holding that collective bargaining is required only for workplace changes that have a “substantial impact” on conditions of employment, as opposed to the much lower “de minimis” standard that had previously prevailed. The opinion concludes that the agency failed to explain adequately its adoption of the new standard—a holding that rests on what legal scholar Jonathan Adler called an “erroneous and unduly strict” application of Supreme Court precedent imposing a light burden on agencies changing their policy positions. They need merely “display awareness” of the change and identify “good reasons for the new policy.” To this, Judge Jackson’s opinion adds the requirement, which the Supreme Court had rejected, that the agency show the new policy to be better than the old one.

After reviewing so many of Judge Jackson’s judicial opinions, we have no doubt of her capabilities. We can’t discern whether she has any cognizable judicial philosophy that would guide her approach to the sort of fraught legal questions that the Supreme Court confronts term after term. Her loudest advocates are confident that she’ll serve them well, and her record supports that view. With 50 Democratic senators, that may be enough.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/ketanji-brown-jackson-judicial-record-supreme-court-nominee-public-defender-dc-circuit-biden-11646001770