Originalist sin, anyone? The Volokh Conspiracy’s David Post has the scoop: Case or Controversy Requirement? What Case or Controversy Requirement?.
As Dave points out, in a post that is, I would say, “thorough”, two of the many “big” decisions handed down by the Supreme Court in its recently concluded “summer session”—Moore v. Harper, shooting down the nefarious “independent state legislatures” theory, which Republicans hoped to use to overturn “wrong” presidential election results, and 303 Creative v. Elensis, which appears to have put the kibosh on the ever-continuing threat of homo wedding websites,1 to be precise—have one surprising thing in common: Neither should have been decided by the Court! Because they wern't actual “cases or controversies” as the Constitution requires, but rather mere hypotheticals, which is not what the Court is supposed to do!
You have to read quite a bit of what Dave has to say about why 303 should never have been before the Court before you get to the heart of the matter—which, even then, Dave presents as cautiously as possible, to wit:
Here's a theory a friend of mine put forward—a little far-fetched, I grant you, but not entirely implausible, and the only one I've heard that makes sense of things. Just a few days before the Court ran roughshod over the constitutional case/controversy requirement in the 303 Creative decision, it ran roughshod over the constitutional case/controversy requirement in Moore v. Harper, which struck down the so-called "independent state legislature theory" in connection with the conduct of federal elections.
Well, here’s Dave’s friend’s “theory”—which I find damned plausible—that CJ Roberts went to the Alito/Thomas/Gorsuch triumvirate and said “I’ll trade you my fake case for yours.” I’m betting—well, I would be if I liked to bet—that Roberts was basically terrified of deciding an “independent state legislatures” case in real time, with a swarm of balaclava-wearing antifas and a bevy of bear spray-flauntin’ Proud Boys duking it out in the Supreme Court parking lot. In return for shutting down the possibility of that sort of mouth-breathing shenanigans following the first Tuesday in November, Roberts could be sure that Sonia, Elena, and Ketanji wouldn’t kick too much over a minor (one hopes) expansion of the supposed “right” of fussy religious folk to inflict their fussiness on others.2
As Dave notes, Moore v. Harper was entirely “moot” thanks to, well, political shenanigans in North Carolina—there was nothing to be decided after a newly minted Republican majority on the NC Supreme Court reversed a previous decision issued by a no longer existent Democratic majority. The reversal was shamelessly partisan—something we can expect a lot of at the state level these days.
Frankly, I think Roberts made the “right” call on this one. Driving a stake through the “independent state legislature” theory was worth a little trashing of the “current case or controversy” rule—which is, 99% of the time, an excellent one. But I hope the Chief Justice might realize that there is more to his job than just “calling balls and strikes”. Sometimes, he has to make sure the “right guy” strikes out. If he did realize that, he might also realize that he’s already issued lots of “political” decisions, like his “split the baby” opinion partially upholding, and partially invalidating, the Affordable Care Act. If you’re going to play politics—and a Chief Justice has to—it’s better to know that you’re doing it.3
Afterwords
The New York Times Linda Greenhouse has a “nice” (from a liberal point of view) take/takedown on Chief Justice John Roberts’ Reign o’ Horror, with a particular emphasis (of course) on the overturning of Roe v. Wade and the demolition of affirmative action in Students for Fair Admission v. Harvard. The thing is, I think the Court got it right both times.
I’ve already discussed my long standing objections to Roe v. Wade here. Liberals remain blind to the moral arrogance that “compels” them to demand than any issue they feel strongly about be removed from public discussion, as though “democracy” is only appropriate for unimportant issues. If Roe had never been decided, and liberals had been forced to deal with the matter through legislation, the outcome—though arduous in the extreme and, probably, not fully resolved after the fifty-odd years that have elapsed from the original decision—would have far more legitimacy with the American people as a whole.
The same may be said for affirmative action, which, though liberals could not admit it, was a millstone around their necks, a deeply unpopular, and deeply dysfunctional, “cure” for racism, which was not curing racism, but which liberals clung to as “proof” that they were fighting for the right. I have written all about the whole Harvard/affirmative action thing for quite a few years now, here, here, and here.
On the other hand, I have also found much to dislike when it comes to Republican S. Ct. jurisprudence. See You’re funny, Justice Scalia! You’re a funny man! You’re also a fat-assed, self-congratulatory liar, and a shitty constitutional scholar to boot!, for example.
1. We are, of course, already safe from homo wedding wedding cakes. Thank you, Supreme Court!
2. In particular, Dave points to the “curious incident of the dissent” in 303 signed by the three liberals on the Court, which makes no mention of the fact that Lori Smith brought the suit, not on the grounds that the state of Colorado had penalized her for violating state law by refusing to create a gay wedding website, but rather, on the grounds that if she actually went into the wedding website business (which she hadn’t), and if she got a request to create a gay wedding website (which she also hadn’t), and if she refused to do so (which she also hadn’t), and if the state penalized her for having done so (which the state also hadn’t), then she would have suffered an injury (which of course she also hadn’t).
3. Roberts' attempted compromise in Dobbs v. Jackson Women’s Health Organization, which would have maintained constitutional protection for abortions occurring prior to 13 weeks after conception, was even more nakedly political.
