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

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

Jan. 6, 2022, in the Wall Street Journal

Hours after President Biden’s Sept. 9 speech announcing a series of vaccine mandates for private-sector employees, his chief of staff, Ron Klain, retweeted an MSNBC anchor’s quip that wielding workplace-safety regulation to force vaccinations was “the ultimate work-around.” Congress has never enacted a law requiring American civilians to be vaccinated—assuming it even has the constitutional authority to do so, which is doubtful. The Supreme Court hears arguments Friday on two of the mandates, which are likely to meet the same fate as other recent attempts to circumvent Congress that the courts have rejected.

The Constitution vests the power to make laws in Congress and charges the president with the duty to execute them. That’s what many in Washington derisively call the “high school civics class” model of government. It’s slow, it’s cumbersome, it rarely approves measures that don’t enjoy widespread public support, and it forces compromise, moderation and tailoring of policies to address the circumstances of a vast and varied nation. The temptation of avoiding it via executive fiat is obvious.

All it seems to take is clever lawyering. The U.S. Code is littered with broadly worded laws, made all the more capacious by judicial deference to agencies’ interpretations of them. Rather than dutifully carry out Congress’s design, a president can set his own policy and then scour the statute books for language that can be contorted to authorize it. In a 2001 Harvard Law Review article, then- Prof. Elena Kagan called the practice “presidential administration.” President Obama put it more plainly when he faced congressional resistance to his agenda: “I’ve got a pen to take executive actions where Congress won’t.”

But it isn’t quite that easy. The Clean Power Plan, Mr. Obama’s signature climate policy, set rigid and unattainable emission limitations for fossil-fuel power plants to force them out of operation and transform the energy market. It relied on an adventuresome interpretation of an obscure provision of the Clean Air Act. In 2016 the Supreme Court blocked it from taking effect, and the Trump administration later repealed it. (We represented Oklahoma in the litigation.)

Mr. Obama’s immigration-reform measures—also taken in the face of congressional opposition—suffered a similar fate. Deferred Action for Childhood Arrivals—which allows illegal aliens who were brought to the U.S. as children to work and avoid deportation—remains in legal limbo nearly a decade after it was established, following setbacks in the courts. Its counterpart for parents of U.S. citizens and permanent residents was enjoined before it took force.

Mr. Biden has had a taste of defeat himself, in a case that prefigures the mandate challenges. After Congress declined to extend the Trump administration’s nationwide eviction moratorium, the Biden administration acted on its own, relying on a 1944 statute authorizing the Centers for Disease Control and Prevention to undertake clearly delineated disease-prevention measures like fumigation and pest extermination. The justices, however, found it unthinkable that Congress had intended to confer on CDC so “breathtaking” an authority: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”

In other words, loose language in old laws isn’t enough to support a presidential power grab. Yet that’s all the support the administration has been able to muster for the vaccination mandates. The Occupational Safety and Health Administration mandate forcibly enlists all companies with 100 or more employees to administer a vaccination-or-testing requirement that reaches nearly 85 million employees. It relies on a narrow provision addressing workplace-specific hazards that has never been used to require vaccination. The mandate for Medicare and Medicaid providers (covering 10.3 million workers) rests on general provisions authorizing regulations necessary to administer those programs—which, again, have never been used to require vaccinations. None of these statutes contain even a hint that Congress authorized any agency to administer broad-based vaccination mandates touching millions of Americans.

Although the mandates are flawed in other ways, their lack of clear congressional authorization is the most striking defect. Excessive judicial deference to agencies’ statutory interpretations is what enabled Mr. Obama’s “I’ve got a pen” agenda and its revival under Mr. Biden. The result has been to distort the entire federal lawmaking apparatus. Members of Congress now lobby the executive branch to make law through regulation rather than legislate themselves. Agencies enact major policies that have the durability of a presidential term before they’re reversed. And the president would sooner blame the courts for legal defeats than admit he lacks the power to do his allies’ bidding.

The courts share blame for this state of affairs, having lost sight of the basic separation-of-powers principles that should guide questions of agencies’ statutory authority. A decision rejecting the vaccination mandates because they weren’t clearly authorized by Congress would serve as a shot across the bow signaling that the work-around era is over.

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/end-of-work-arounds-biden-executive-order-vaccine-mandate-covid-omicron-supreme-court-11641505106

By David B. Rivkin Jr. and Lee A. Casey

7 December 2021 in the Wall Street Journal

Congress is about to begin another debt-ceiling fight, and it threatens the Constitution as well as America’s solvency.

Over the past two years, Uncle Sam has borrowed and spent trillions of dollars to address Covid-19. Coronavirus spending added nearly $3 trillion to the national debt this year alone—and that doesn’t count the recently passed infrastructure bill and the pending Build Back Better Act. The unprecedented growth in federal outlays has contributed to inflation, which has reached a 30-year high, and caused annual budget deficits to soar.

The government is about to reach its statutory federal borrowing limit of $28.4 billion. If Congress doesn’t increase the limit, Washington will run out of money to meet its legal obligations. Republicans and Democrats are at loggerheads over how much to spend and whether to enact what the Democrats call “transformational” legislation—measures that would reshape the American economy and increase government’s role in nearly all aspects of life.

The threat to the Constitution comes from one of the options lawmakers are considering: suspending rather than raising the statutory debt ceiling, thereby authorizing the executive branch to borrow an unlimited amount of money for a limited time. Suspending the debt ceiling would undermine the structure of American democracy—particularly when government spending obligations are in flux, and the future direction of key policies is being fiercely contested.

Senate Minority Leader Mitch McConnell has warned Democrats that if they insist on enacting major and costly policy changes on a partisan basis, they will have to increase the debt ceiling without votes from Republicans. That could be accomplished through budget reconciliation, the means by which the Democrats intend to pass the Build Back Better Act with a simple majority. But Democrats are wary of unilaterally raising the debt ceiling, which isn’t popular.

In October, facing a debt-ceiling stalemate and a possible government shutdown, Republicans reluctantly supplied the votes necessary to increase the debt ceiling by $480 billion. That was constitutionally proper, but it bought only a little time. The increase will be exhausted this month, and Mr. McConnell and Majority Leader Chuck Schumer have again started negotiations on the debt ceiling.

Congress usually raises the statutory debt ceiling to a new specific dollar amount, a core part of its constitutional power of the purse. Occasionally, however, Congress (with both parties in the majority) has “suspended” the debt ceiling. As we argued in these pages during the last debt-ceiling crisis, such delegations of power are constitutional only if, as Justice Elena Kagan put it in Gundy v. U.S. (2019), “Congress lays down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform.”

The current unsettled budgetary environment makes the constitutional infirmity of suspending the debt ceiling acute. When suspensions were adopted in the past, there was at least a shared understanding between Congress and the executive about where the dollars were to go and how much spending there would be. Previous suspensions weren’t coupled with open attempts to transform the country’s economy and society—to upend the fundamental relationship of government to the governed.

Today’s spending plans are opaque and unpredictable. The estimated cost of Build Back Better alone ranges from $1.75 trillion to more than $5 trillion. That lack of clarity could also dramatically alter the terms upon which the Treasury can find willing buyers for new U.S. debt, greatly increasing debt-servicing costs. Suspending the debt ceiling in these circumstances would mean the executive branch is entirely unbound.

As another debt-ceiling cliff-hanger emerges, Democratic leaders appear committed to a suspension, which again would require Republican support. Giving bipartisan cover to another unconstitutional suspension would be disastrous. Decisions about the levels of spending, borrowing and taxation now under consideration require democratic accountability. Congress is almost evenly divided between the two major parties, a situation that counsels against transformative political and economic changes negotiated in back rooms.

If Democrats believe their programs are meritorious enough to burden the country with trillions of dollars in additional debt, they should accept the political risk of raising the debt ceiling without Republican votes. If Democrats are right, they’ll benefit and Republicans will pay the political price for intransigence. That’s how American democracy works, and why so many of the Constitution’s most fundamental provisions, such as Congress’s power of the purse, were adopted—to ensure accountability and the consent of the people.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush Administrations.

Source: https://www.wsj.com/articles/debt-ceiling-crisis-threatens-democracy-budget-limit-build-back-better-mcconnell-schumer-11638718728

Ideological lines turn out to be more fluid than partisans had imagined when Barrett was named.

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

July 1, 2021, in the Wall Street Journal

‘Every time a new justice comes to the Supreme Court,” Justice Byron White used to say, “it’s a different court.” Activists expected that to be especially true when Justice Amy Coney Barrett arrived last year. The leftist pressure group Demand Justice denounced the nominee to succeed Justice Ruth Bader Ginsburg as “a far-right, activist judge whose confirmation would threaten to upend the lives of millions of Americans” and predicted her vote would doom ObamaCare.

Reality is seldom so simplistic. ObamaCare survived California v. Texas with a 7-2 majority, including Justice Barrett. Of the 65 cases the court reviewed this term, it decided only nine by 6-3 votes along conventional ideological lines, and only three of those could fairly be described as involving hot-button political controversies. One was Cedar Point Nursery v. Hassid, which held that a California labor regulation requiring agricultural employers to allow labor organizers on their property constituted “a per se physical taking” for which the employers were entitled to just compensation. The others were decided on Thursday as the term ended: Brnovich v. Democratic National Committee on election regulation and Americans for Prosperity Foundation v. Bonta on forced disclosure of nonprofit donors.

Yet it’s true the court has entered a new phase—one characterized by modest conservative victories, unpredictable alignments of justices, and surprising unanimous judgments. The driving forces are doctrinal differences among the court’s six conservatives, Chief Justice John Roberts’s preference for incremental rather than sweeping change, and the embrace across ideological lines of the principle that judges should follow the language of the law. As Justice Elena Kagan said in 2015, “We’re all textualists now.”

The same day the court ruled in favor of ObamaCare, it unanimously held that Philadelphia had violated the First Amendment by decreeing that a Catholic foster-care agency couldn’t operate in the city unless it certified gay couples. The deeper issue was the fate of Employment Division v. Smith (1990), a landmark decision holding that generally applicable laws burdening religious practice don’t violate free exercise, no matter that the burden may be great and the government’s interest slight.

In Fulton v. Philadelphia, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch voted to overturn Smith. Chief Justice Roberts’s opinion for the other six justices didn’t go that far, but it remade the doctrine by holding that religious conduct must be treated no worse than equivalent secular conduct. That means a law isn’t “generally applicable” under Smith if it permits secular exceptions.

Fulton is a victory mainly for the chief justice’s incrementalism, which has its virtues—among them that it makes the court’s rulings easier for the losing side to accept. It’s no small matter that the court was able to rule unanimously for religious freedom in a case widely expected to be contentious. At the same time, Fulton makes Smith easier to overturn by weakening its rationale and reliance on its sweeping rule. In a concurrence, Justices Barrett and Brett Kavanaugh suggested they are open to doing so.

Fulton wasn’t the only surprising show of unanimity. In Caniglia v. Strom, all nine justices rejected a “community caretaking” exception to the Fourth Amendment’s warrant requirements for home searches—a case that might have splintered on concerns about gun violence or the needs of law enforcement. Twice the court unanimously overruled immigration decisions from the Ninth U.S. Circuit Court of Appeals favoring aliens; one of those decisions was written by Justice Sonia Sotomayor.

Other unanimous decisions rejected expansion of recent sentencing reductions for crack offenders, authorized money damages against state officials who violate the Religious Freedom Restoration Act, limited human-rights suits premised on foreign conduct, recognized First Amendment protection for a public-school student’s out-of-school speech, and declined to tighten jurisdictional limits on suits against major corporations. (So much for claims that the Roberts Court is in thrall to big business.)

Behind much of this agreement is the court’s convergence on textualism, the method of interpretation Justice Antonin Scalia advocated as a corrective to judicial policy making. The two unanimous immigration cases, as well as the crack-sentencing one, elevated clear statutory text over policy arguments. Likely the court’s outnumbered liberals have come to realize that only textualist reasoning can achieve a majority on today’s court.

There’s an asymmetry to this. Liberal justices’ methodological flexibility enables them to vote strategically with whichever conservative colleagues favor the most congenial result. Conservatives justices tend to be exacting on questions of text and doctrine, which can split their votes even when they agree on central issues or approach. Yet political conservatives can take heart from the court’s actions this term—and look optimistically toward the next. The justices agreed to hear cases in the 2021-22 term that give them opportunities to scale back precedents on abortion and expand them on gun rights.

The clearest area of positive reform this term concerns Congress’s attempts to shield executive-branch agencies from presidential control and democratic accountability. In U.S. v. Arthrex, the court found a constitutional violation in a scheme authorizing patent judges to render decisions free from review by the head of the Patent and Trademark Office, an officer subject to presidential oversight. In Collins v. Yellen, it held unconstitutional a restriction on presidential removal of the head of the Federal Housing Finance Agency.

The court invalidated only the offensive restrictions. But that limited remedy overcomes the principal objection—“widespread disruption”—to restoring presidential control by overruling the entire line of cases that authorize the headless “fourth branch” of government. That has been a central goal of the conservative legal movement since the 1970s.

To be sure, incrementalism can go too far. Some of the chief justice’s opinions, including Arthrex, are so carefully hedged that the rules they announce are little more than that one party prevailed and the other lost. A similar complaint can be leveled at Justice Stephen Breyer’s 8-1 opinion in the student-speech case Mahanoy Area School District v. B.L., which provides little guidance for lower courts or school administrators. Justice Alito offered more in a concurrence, but only Justice Gorsuch joined it. Likewise, Justice Breyer’s opinion in the ObamaCare case declined to rule on the merits, holding instead the challenges lacked standing yet without addressing their central argument to the contrary.

All these opinions were assigned by the chief justice and joined in full by his most junior colleagues, Justices Kavanaugh and Barrett. They are rightly concerned about overreaching and appear resolved in each case to decide no more than need be decided. Judicial restraint is essential and admirable, but clarity about the law is necessary for the rule of law to function. As the new justices gain confidence, the court should strike a truer balance.

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/a-cautiously-conservative-supreme-court-11625164373