July 9, 2018 – ROGUES IN ROBES

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John Fund spotted something important in the Supreme Court immigration ruling. It was an aside in Justice Thomas’ concurring opinion.

 

Whenever there is a Supreme Court vacancy, I view it as a chance to teach voters about the courts and their legitimate role in our government. We could use that. Last year, the Annenberg Center found that only 26 percent of those it surveyed could name the three branches of government (executive, judicial, and legislative). A full 33 percent couldn’t name even one branch.

Confusion about the proper role of the courts extends to many of our sitting judges. Last month, while the Supreme Court narrowly upheld the so-called Trump travel ban, Justice Clarence Thomas raised an issue that the next Supreme Court justice may have to weigh in on. Why is it, he asked, that a single federal district judge can impose an injunction blocking a presidential executive order in all 50 states even if none of his colleagues (599 district judges) thinks it’s a good idea? …

… Justice Thomas says their recent explosion calls for a rethinking of their validity because “no statute expressly grants district courts the power to issue universal injunctions.” He concludes that, as used today, they “boi[l] down to a policy judgment” about how judges define the limits of a president’s power. But that judgment is supposed to spring from the Constitution, not from the preferences of a black-robed figure. …

 

 

 

Glenn Reynolds had a good thought a few months ago about the people we put on SCOTUS. He call’s them “front row kids.” We can also think of them as “A” students. Pickerhead thinks we need more “C” students. After all, look at what the A students have brought us.

 

In the wake of the 2016 presidential election, we heard a lot about America’s division into two mutually hostile camps: a largely coastal, urban party run by educated elites, and a largely rural and suburban “flyover country” party composed of people who did not attend elite schools and who do not see themselves as dependent on those who do. This divide is more fundamental than mere partisan identification, as there are Democrats and Republicans in both groups.

One of the best formulations of this division comes from photographer Chris Arnade, who has spent years documenting the lives of America’s forgotten classes. In his characterization, America is split between the “Front Row Kids“ — who did well in school; moved to managerial, financial or political jobs; and see themselves as the natural rulers of their fellow citizens — and the “Back Row Kids,” who placed less emphasis on school; and who resent the pretensions and bossiness of the Front Row Kids.

While teaching constitutional law after the election, it occurred to me that though the Back Row Kids can elect whomever they want as president, senators or representatives, there is one branch of the federal government (and all state governments) that is, more or less by its nature, limited to Front Row Kids: the judiciary. …