The U.S. Supreme Court Clipping Judicial Overreach

The separation of powers that characterizes governments in the United States assumes that each branch will act to further its own interests, given the salience of self-interest (and self-preservation) in human nature. It is assumed that the checks and balances between legislative, judicial, and executive branches will keep any one branch from dominating the other two, and, moreover, the government itself from becoming tyrannical at the expense of the liberty of the citizenry. It is not assumed or relied upon that a branch will prune itself without external pressure from one of the other branches. Yet the U.S. Supreme Court may have done so in ruling on June 27, 2025 to limit “the ability of lower-court judges to block executive branch policies nationwide.”[1] I contend that any real wing-clipping by 6 of the 9 justices is illusory rather than indicative of the federal judiciary unilaterally restricting itself.

The full essay is at "The U.S. Supreme Court." 

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1. Abbie Vansickle, “Justices Put Limit on Judges’ Power, In Win for Trump,” The New York Times, June 28, 2025.

The U.S. Supreme Court Reining in Regulatory Agencies: Implications for the Imperial Presidency

In Loper Bright Enterprises v. Raimondo handed down by the U.S. Supreme Court on June 28, 2024, a majority of the justices overruled Chevron v. Natural Resources Defense Council, which had been the precedent giving regulatory agencies considerable discretion in coming up with specific regulations, given the penchant of the Congress to write vague laws. In the overturning case, a group of fishermen had objected to having to pay for government observers to board the fishing boats to monitor the fishing. On the merits, it does seem unfair for regulatory agencies to charge the regulated to be regulated. In overturning Chevron, however, Loper has much broader implications, chief among them being in terms of separation of powers—specifically in reining in the expanding power of the executive branch, here at the expense of the judiciary.   

The full essay is at "The U.S. Supreme Court on Regulatory Agencies."

On the Impotency of International Law in a System of Sovereign States: The Case of Gaza

The sheer brazenness with which countries ironically recognized as being sovereign states by international law ignore international law even in regard to human rights that seeks to place boundaries on said sovereignty reflects the impotency of international law, and thus even that which recognizes national sovereignty itself. For the rest of us, continuing to believe that upcoming cases before the International Court of Justice, the UN’s court, are of consequence and thus even worth paying attention to, demonstrates abject stupidity, as if we were herd animals without learning curves. Admittedly, the stubborn, self-aggrandizing governments are ethically worse than the world’s population that lets such governments blatantly and even explicitly ignore judicial rulings of the International Court of Justice (and the European Court of Human Rights), but culpability can also be gleamed from the public’s truly pathetic irrational belief that another case against a country that has just ignored a verdict of that very court might just work in curtailing human-rights abuses and outright, even genocide-scale, aggression that outstrips even the sin of retaliation. Either I am blind or the proverbial emperor is not wearing any clothes.

The full essay is at "On the Impotency of International Law."

The Israeli Supreme Court’s Conflict of Interest as Unreasonable

Ironically, in making the ruling on New Year’s Day of 2024 striking down Prime Minister Netanyahu’s amendment to the country’s basic law that would have removed the judiciary’s authority of judicial review of laws based on their reasonableness, Israel’s Supreme Court too unreasonably exploited a conflict of interest. Basic Law, which is essentially constitutional law, includes the basic architecture of a government, such as how the executive, legislative, and judicial functions are related. Self-interest being a salient feature of human nature, we can assume that the governmental functionaries in each of those functions naturally seek to expand their respective jurisdictions relative to those of the other two. I contend that to give one or two of those areas the last word in altering the division of authority involves a conflict of interest. This applies to a constitutional court. Therefore, even though democracy is served by a judicial decision striking down an attempt by the executive and/or legislature to eviscerate the authority of the judiciary to act as a check, giving the latter the last word is fraught with entanglements. 

The full essay is at "Israel's Supreme Court: A Conflict of Interest."

The Colorado Supreme Court Bars Insurrectionist Trump: Who Should Ultimately Decide?

On December 19, 2023, Colorado’s Supreme Court ruled that Don Trump, a former U.S. president, had engaged in insurrectionist activity as a matter of fact, and furthermore, as a matter of law, the U.S. Constitution bars him from holding any office, including the presidency. With an appeal to the U.S. Supreme Court a certainty, realized even by the Colorado justices, and some notable (and very visible) Republicans arguing that the American people should have the final say on whether Trump will be president again beginning in 2025, the question of who should have the final say—the judiciary or the people—was pressing, and indeed, very important. I contend that the determination of fact should have been made by a jury in a criminal proceeding, and that even absent that, the ultimate decision should still be made prior to, and thus not during, the election, for the question is whether Trump can be listed as a candidate for the office. Ultimately, the tension lies between the value of a politics-free judiciary and democratic (majority) rule.

The full essay is at "The Colorado Supreme Court Bars Insurrectionist Trump."

On the Role of Partisan Political Ideology in the U.S. Supreme Court

Observing a pattern of sustained ideological proclivities in the decisions of justices of the U.S. Supreme Court, The New York Times editorialized in 2011 that the “court cannot maintain its legitimacy as guardian of the rule of law when justices behave like politicians.”[1] One could just as easily say behave like human beings, for juridical interpretation itself contains ample space for an interpreter’s ideology to have a role, especially given human nature that is apt to exploit such leeway. In other words, ideology may be part and parcel of the essential function of a constitutional court, given the nature of juridical interpretation. 

The full essay is at "Partisan Ideology in the U.S. Supreme Court."

1. The New York Times, “Ethics, Politics and the Law,” Editorial, July 1, 2011, p. A22.

On the Political Power of Capitalism in American Society

In his confidential memorandum, “Attack on American Free Enterprise System,” Lewis Powell, later to be a justice on the U.S. Supreme Court, wrote in 1971 that the “leftists” were launching a frontal assault on the “free enterprise system,” “capitalism,” or the “profit system.” Powell saw this as an attack on rather than a defending of the “American political system of democracy under the rule of law.” That the corporate profit-interest might be a threat to “one person one vote” apparently did not occur to the future Justice. Rather, what is good for GM he presumed must be good for American democracy. Moreover, both, he presumes, are consistent with, or perhaps even foundational for, American values.

The full essay is at "On the Political Power of Capitalism."

Can an American Member-State Exit the Union?

A war was fought over it. In early 2013, the White House made it explicit in replying to a petition. Yet still there was a sense among at least some Texans that something was amiss. Following U.S. President Obama’s re-election in 2012, citizens of Texas, Louisiana, Alabama, and five other member-states in the U.S. signed petitions for the White House to allow their respective states to secede from the Union. At the time, few people other than the secessionists themselves took the petitions seriously. Yet the underlying contending principles deserve more serious reflection even if no "exit" is anticipated. Most importantly, the matter concerns how and whether the rights of member-states (and majorities of the people, therein) are to be circumscribed in a federal union that leaves said republics semi-sovereign and with residual sovereignty.

The full essay is at "Can an American Member-State Exit?"

The American Media Went “Nuclear” on the U.S. Senate's Filibuster: A Case of Hyperactive Marketing?

Is ending the filibuster on appointments to executive-branch offices as well as judicial appointments below the U.S. Supreme Court really “the nuclear option”? Is this expression simply rhetoric gone horribly over the top? Journalists would undoubtedly demur, at least publically, yet without feeling an ounce of shame.

The full essay is at "Going Nuclear on the Filibuster: Journalistic Over-Kill?" 

Does a Supermajority Undercut Constitutionalism?

How “extreme” can a legislative supermajority get in its legislation? Can constitutional safeguards act as a check where a legislative supermajority can enact amendments at will? A judiciary protecting the rights of individuals as well as a people against over-reaches by a government is limited by constitutional provisions presumably set in stone yet actually in erasable parchment. Complicating an answer, the term extreme may be applied to a piece of legislation by one person and refused by another. I come from a medium-sized city in the Midwest, where extreme has been thought to apply to commuting to work by bicycle. Where a pathological fear of change grips a town, you don’t have to go far to find someone proscribing something or other as too extreme At the level of the U.S. governmental institutions, one political party might deem universal health insurance through extant private insurance companies as extreme—tantamount to demonic European socialism—while another party might view continuing to use private insurance companies as merely reformist rather than extreme. A supermajority can take advantage of such a difference in descriptive judgments to argue that a significant constitutional change is actually a minor change and thus not worth worrying about. 

How “extreme” can a legislative supermajority get in its legislation? Can constitutional safeguards act as a check where a legislative supermajority can enact amendments at will? A judiciary protecting the rights of individuals as well as a people against over-reaches by a government is limited by constitutional provisions presumably set in stone yet actually in erasable parchment. Complicating an answer, the term extreme may be applied to a piece of legislation by one person and refused by another. I come from a medium-sized city in the Midwest, where extreme has been thought to apply to commuting to work by bicycle. Where a pathological fear of change grips a town, you don’t have to go far to find someone proscribing something or other as too extreme At the level of the U.S. governmental institutions, one political party might deem universal health insurance through extant private insurance companies as extreme—tantamount to demonic European socialism—while another party might view continuing to use private insurance companies as merely reformist rather than extreme. A supermajority can take advantage of such a difference in descriptive judgments to argue that a significant constitutional change is actually a minor change and thus not worth worrying about. 

The full essay is at "Supermajority and Constitutionalism."

Rule of Law in the E.U.: Implications for the Federal System

For a federal system to be viable over the long term, a core of basic values must be shared even though one of the main functions of federalism as a system of government is the ability to accommodate diversity from state to state. In the case of the E.U. and the U.S., the rule of law, democracy, and separation of powers as concerns the independence of judiciaries at the state and federal levels are non-negotiable; hence as these are compromised or thwarted outright, the viability of E Pluribus Unum can be expected to unravel. As 2017 came to an end, the E.U. found itself largely impotent as some of the eastern states violated the basic principles of rule of law and an independent judiciary with impunity. If the impunity was indeed real, the federal system itself was in desperate need of repair.

The full essay is at "The E.U.: Trouble in the Eastern States."

Democracy and the Courts: Alternative Checks on Austerity in Greece

In May 2011, “Athens agreed to impose a new $9 billion round of tax increases and spending cuts and speed up nearly $75 billion in promised privatizations.” In early June, a new round of tightening was being planned by the Greek government. It was feared that those cuts would deepen the recession and thus further shrink the tax base, making it even harder for the government to cut its deficit. Meanwhile, Reuters reported, “Greeks are showing signs of reaching the limits of their endurance as budget cuts imposed under Greece's first bailout a year ago have helped to push unemployment close to 16 percent.” The news service cited police reports of more than 80,000 people packing the main Syntagma square outside parliament on June 6^th—the 12^th consecutive day of protesting there.

                                              Reuters

The full essay is at "Democracy and the Courts: On Austerity."

The SEC and the Courts on Wall Street Settlements in 2011

The SEC enforcement staff, including its chief, Robert Khuzami, decided to kick a gift horse in the mouth rather than to “take a lesson” and perhaps come out stronger for it. At issue was the rejection by U.S. District Judge Jed Rakoff of the SEC’s proposed $285 million settlement with Citigroup. In his ruling, Rakoff denounced the penalty as “pocket change” to the bank, which would not even have to admit to any wrongdoing. Investors duped into buying into a $1 billion deal called Class V Funding III had lost $700 million. Betting at the time of issue against half of the assets in the deal, Citigroup did not share knowledge of its hedge with the investors.

The reaction of the SEC staff in Khuzami’s department was simply to “put down their pencils” and wonder how they should go about arranging settlements with financial firms accused of misconduct before and during the financial crisis of 2008. The SEC “doesn’t know what to ask for anymore in the settlements,” one of the people familiar with the Citigroup settlement said. Rather than take the judge’s judgment to heart, Khuzami urged the five-person commission running the SEC to vote to approve an appeal, and they did so. Rather than take the less convenient course of insisting that the banks too big to fail that manipulated their own clients at least admit wrong-doing and reimburse the losses, Khuzami viewed the judge’s ruling as if it were a political obstacle to be obviated by asking an appellate court to ignore it. Given the political muscle that must surely go with Citigroup’s wealth, Khuzami could have been assuming that the bankers would see to it that sufficient pressure would plied on enough appellate judges to make the obstacle easily avoidable. In other words, Khuzami was likely assuming that Rakoff was a fluke, given Citi’s influence—perhaps even in the SEC itself.

The full essay is at "The SEC and the Courts."

Judicial Ethics: Friendship and Philanthropy

Harlan Crow was a Dallas real estate magnate and a major contributor to conservative causes. He did many favors for his friend, Clarence Thomas, “helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for [Virginia] Thomas to start a Tea Party-related group.” The two friends spent time together at “gatherings of prominent Republicans and businesspeople at Crow’s Adirondacks estate and his camp in East Texas.” Crow also “stepped in at Thomas’ urging” to finance the multimillion-dollar purchase and restoration of the cannery that had employed the justice’s mother. Crow’s restoration “featured a museum about the culture and history of Pin Point that has become a pet project of Justice Thomas’s. . . . While the nonprofit Pin Point museum is not intended to honor Justice Thomas, people involved in the project said his role in the community’s history would inevitably be part of it, and he participated in a documentary film that is to accompany the exhibits.”

News “of Mr. Crow’s largess provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics. But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges. Although the Supreme Court is not bound by the code, justices have said they adhere to it. Legal ethicists differed on whether Justice Thomas’s dealings with Mr. Crow pose a problem under the code.”

The code says judges “should not personally participate” in raising money for charitable endeavors, out of concern that donors might feel pressured to give or entitled to favorable treatment from the judge. In addition, judges are not even supposed to know who donates to projects honoring them. . . . (T)he restriction on fund-raising is primarily meant to deter judges from using their position to pressure donors, as opposed to relying on ‘a rich friend’ like Mr. Crow, said Ronald D. Rotunda, who teaches legal ethics at Chapman University in California.” On the other side of the argument, Deborah L. Rhode, a Stanford University law instructor who has called for stricter ethics rules for Supreme Court justices, said Justice Thomas “should not be directly involved in fund-raising activities, no matter how worthy they are or whether he’s being centrally honored by the museum.”

The ethical analysis is at "Judicial Ethics."

Source:

Mike McIntire, “Friendship of Justice and Magnate Puts Focus on Ethics,” The New York Times, June 18, 2011.

The Unenforceable E.U. as Poland Legislates to End its Judiciary’s Independence

With a state government rapidly moving on legislation that would end the independence of that state’s judiciary, the E.U. Commission announced that it would invoke Article 7 against that state. An independent judiciary is a staple of democratic governance, and is thus required of a state (as well as at the federal level, in regard to the independence of the European Court of Justice from the other branches of the federal government).  If invoked, Article 7 of the E.U.’s basic (i.e., constitutional) law would deprive the state of Poland of its voting rights at the federal level. The independence of state courts is that important in the E.U., and yet for the article to go into effect, the European Council’s vote, excepting Poland, must be unanimous. Already, the governor of the state of Hungary had made clear that he would vote against invoking the article—that state having its own constitutional troubles with the E.U. Commission and being friendly with Poland.  In other words, two conflicts of interest came into play immediately, even as the Polish legislature was still voting on the proposed judicial reform.

The full essay is at "The Unenforceable E.U.."

A Legislature Court: A Conflict of Interest Averted in Venezuela

Fundamentally, a court differs from a legislature, so it would be strange were a state’s supreme court to take it upon itself to act as the state’s legislature as well. In late March, 2017, Venezuela’s Supreme Court did exactly that, ignoring the qualitative difference between interpreting contested law and legislating. The court wrote that lawmakers in the legislature were “in a situation of contempt,” and that as long as that situation lasted the justices would “ensure that parliamentary powers [are] exercised directly by this chamber, or by the body that the chamber chooses.”[1] Understandably, Julio Borges, the head of the legislative Assembly, exclaimed, “They have kidnapped the Constitution, they have kidnapped our rights, they have kidnapped our liberty.”[2] Luisa Ortega, the Attorney General,” wrote that the court’s decision represented “a rupture in the constitutional order.”[3] This was true both in regard to the basic, or fundamental distinction between judicial review and legislating and democracy itself.

The president and chief justice of Venezuela. A conflict of interest in the making?  (Source: Reuters)

The full essay is at "A Legislature Court."

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[1] Nicholas Casey and Patricia Torres, “Venezuela Muzzles Legislature, Moving Closer to One-Man Rule,” The New York Times, March 30, 2017.

[2] Ibid.

[3] Ibid.

Russia’s Putin beyond Constitutional Government: The Case of Aleksei Navalny

With a judge handing down a five-year suspended prison sentence, a fine of 500,000 rubles (about $8,400), and a ban on participating in the upcoming presidential election in 2017, Aleksei Navalny could feel just how power can be wielded by high government officials, including even presidents—power ultimately backed up by stern men with guns with the legal right to use lethal force. This, I submit, is what government comes down to—it’s bottom line.

The true look of a government's power. (Sergei Brovko/Reuters)

The full essay is at "Russia's Putin beyond Constitutional Government."

A Federal Court Stays President Trump’s Muslim-Ban: Flawed Reportage?

Judge Ann Donnelly of the U.S. Federal District Court in Brooklyn, New York, issued a nationwide injunction on January 28, 2017 concerning President Donald Trump’s executive order barring people from seven countries from entering the United States. On the same day, BBC (America) radio reported that Trump had been stopped in his tracks. I submit that this instance points to the importance of investigative journalism prior to reporting. Alternatively, the case may illustrate a partisan or otherwise ideological penchant among journalists officially tasked with investigating and reporting rather than interpreting the news. 

The full essay is at "President Trump's Muslim Ban."

Reforming Chinese Courts: A Fool’s Errand?

With Chinese courts revising more than 1,300 criminal decisions in 2014, the chief justice of the Supreme People’s Court, Zhou Qiang, told the national legislature in March 2015, “With regard to wrongful convictions, we feel a deep sense of self-blame and demand that courts at all levels draw a profound lesson.”[1] Six months earlier, President Xi Jinping had initiated legal reforms on the premise that the Communist Party needed a “better-functioning” legal system in order to be able to govern.[2] The question is whether this push will come to anything substantial.

The full essay is at "Reforming Chinese Courts."

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1. Josh Chin, “Top Judge Apologizes for Wrongful Convictions,” The Wall Street Journal, March 13, 2015.

2. Ibid.

S. & P. Sued for $5 Billion: Breaking a Conflict of Interest?

In sending a message to S & P as well as Wall Street more generally regarding the excesses in the securitization of subprime mortgages that contributed materially to the financial crisis of 2008, the U.S. Government and several state governments announced in early 2013 that they would sue S & P for $5 billion as a penalty and to cover damages to state pension funds and federally-insured banks and credit unions.  The operative assumption was that such a monetary figure would have considerable force as a disincentive to profit by means of fraud.  Would $5 billion be sufficient for the message to be delivered not only S. & P. but also to Wall Street? 

The full essay is at Essays on the Financial Crisis, and
 Institutional Conflicts of Interest, both available at Amazon.