The Decline of Supreme Court Deference to the President

[de officiis]

The Decline of Supreme Court Deference to the President

University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 800
U of Chicago, Public Law Working Paper No. 618

Lee Epstein
Washington University in Saint Louis - School of Law

Eric A. Posner
University of Chicago - Law School

According to entrenched conventional wisdom, the president enjoys considerable advantages over other litigants in the Supreme Court. Because of the central role of the presidency in the U.S. government, and the expertise and experience of the Solicitor General’s office, the president usually wins. However, a new analysis of the data reveals that the conventional wisdom is out of date. The historical dominance of the president in the Supreme Court reached its apex in the Reagan administration, which won nearly 80% of the cases, and has declined steadily since then. In the Obama administration, the presidency suffered its worst win rate, barely 50%. After documenting this trend, we discuss possible explanations. We find evidence that the trend may be due to growing self-assertion of the Court and the development of a specialized private Supreme Court bar. We find no evidence for two other possible explanations — that the trend is due to greater executive overreaching than in the past, or ideological disagreements between the Court and the presidency.

https://papers.ssrn.com/sol3/papers.cfm ... id=2928222

[Calculus Man]

I had a really good AP American History teacher in high school. One of his pet theories was that the Supreme Court is currently the most powerful branch of the federal government, by far. He believed that Congress was the strongest branch antebellum, and that the executive branch had been the most powerful during most of the 1900s.

Most of us wrote this theory off as a byproduct of his social conservatism--the guy was obsessed with Roe v. Wade. And I do mean obsessed. But as we increasingly become reliant on the Court to interpret a virtual constitution for us, I am beginning to think he was completely right.

[apeman]

I had a really good AP American History teacher in high school. One of his pet theories was that the Supreme Court is currently the most powerful branch of the federal government, by far.

I didn't think that view was controversial.

[atanamis]

I didn't think that view was controversial.

It is. I have been walking around stating to people for several years now that the Supreme Court is the closest thing we have to a king, and nobody agrees. But the Supreme Court justices are non elected positions which cannot be taken from the recipient. The Supreme Court can literally decide that ANYTHING is "unconstitutional" and nobody can tell them they are wrong. The only way to block such behavior in a legal way would be to increase the number of justices, something the Congress is allowed to do at will. Sure we have a Constitution which is supposed to be the ultimate authority, but doesn't whoever gets to "interpret" the Constitution inherently have the real power?

[apeman]

Sure we have a Constitution which is supposed to be the ultimate authority, but doesn't whoever gets to "interpret" the Constitution inherently have the real power?

Bingo. Even a layman can peruse the Constitution for a couple minutes and see that we don't actually follow it (limited enumerated powers, 4th amendment, congress declare war, and so on and so on). And a non-laymen sees the commerce clause, and looks back on the penumbras, etc. It is all, 100%, bullshit.

So if the Constitution is the document that restrains the govt, and SCOTUS -- with lifetime tenure -- gets to invent from whole cloth what the Constitution says ....

A simple way to prove this is to look back on the big ACA case, whatever it was called. Every pundit had his prediction as to which clause would be used to uphold/strike, and the decision ultimately rested on Congress' power to tax -- a justification that no one was predicting.

[jbird4049]

Sure we have a Constitution which is supposed to be the ultimate authority, but doesn't whoever gets to "interpret" the Constitution inherently have the real power?

Bingo. Even a layman can peruse the Constitution for a couple minutes and see that we don't actually follow it (limited enumerated powers, 4th amendment, congress declare war, and so on and so on). And a non-laymen sees the commerce clause, and looks back on the penumbras, etc. It is all, 100%, bullshit.

So if the Constitution is the document that restrains the govt, and SCOTUS -- with lifetime tenure -- gets to invent from whole cloth what the Constitution says ....

A simple way to prove this is to look back on the big ACA case, whatever it was called. Every pundit had his prediction as to which clause would be used to uphold/strike, and the decision ultimately rested on Congress' power to tax -- a justification that no one was predicting.

All this power requires the system to respect its authority for if we get another Andrew Jackson, who didn't, we can easily get something like The Trail of Tears again.

[apeman]

Sure we have a Constitution which is supposed to be the ultimate authority, but doesn't whoever gets to "interpret" the Constitution inherently have the real power?

Bingo. Even a layman can peruse the Constitution for a couple minutes and see that we don't actually follow it (limited enumerated powers, 4th amendment, congress declare war, and so on and so on). And a non-laymen sees the commerce clause, and looks back on the penumbras, etc. It is all, 100%, bullshit.

So if the Constitution is the document that restrains the govt, and SCOTUS -- with lifetime tenure -- gets to invent from whole cloth what the Constitution says ....

A simple way to prove this is to look back on the big ACA case, whatever it was called. Every pundit had his prediction as to which clause would be used to uphold/strike, and the decision ultimately rested on Congress' power to tax -- a justification that no one was predicting.

All this power requires the system to respect its authority for if we get another Andrew Jackson, who didn't, we can easily get something like The Trail of Tears again.

If you read the 9th circuit decision halting trump's immigration EO, you'll realize just how close any serious person is to not respecting high court authority, at all.

[atanamis]

A simple way to prove this is to look back on the big ACA case, whatever it was called. Every pundit had his prediction as to which clause would be used to uphold/strike, and the decision ultimately rested on Congress' power to tax -- a justification that no one was predicting.

I did. If the DCF still existed I could point back at my posts when the individual mandate was first raised explaining that the only possible Constitutional justification for it was to call it a tax. People told me at the time "well the President says that is isn't a tax", and I told them that it didn't matter what the President said, it was either unconstitutional or it was a tax. The fact that mass media reporters missed this obvious fact has always been something that is strange to me. Congress doesn't have the constitutional right to make me buy an umbrella, but they do have the right to charge me a tax for not owning one. It was the only way that the mandate could rationally avoid being found unconstitutional.

I'll have to go search some of those archive tools to see if I can find the posts... Anyone who was around willing to vouch for me here?

[jbird4049]

A simple way to prove this is to look back on the big ACA case, whatever it was called. Every pundit had his prediction as to which clause would be used to uphold/strike, and the decision ultimately rested on Congress' power to tax -- a justification that no one was predicting.

I did. If the DCF still existed I could point back at my posts when the individual mandate was first raised explaining that the only possible Constitutional justification for it was to call it a tax. People told me at the time "well the President says that is isn't a tax", and I told them that it didn't matter what the President said, it was either unconstitutional or it was a tax. The fact that mass media reporters missed this obvious fact has always been something that is strange to me. Congress doesn't have the constitutional right to make me buy an umbrella, but they do have the right to charge me a tax for not owning one. It was the only way that the mandate could rationally avoid being found unconstitutional.

I'll have to go search some of those archive tools to see if I can find the posts... Anyone who was around willing to vouch for me here?

I believe you. People just don't realize that respect for a system is what makes it both legitimate, and functional. When the outcome is all that matters, and not the means, well you can lose both.

[apeman]

A simple way to prove this is to look back on the big ACA case, whatever it was called. Every pundit had his prediction as to which clause would be used to uphold/strike, and the decision ultimately rested on Congress' power to tax -- a justification that no one was predicting.

I did. If the DCF still existed I could point back at my posts when the individual mandate was first raised explaining that the only possible Constitutional justification for it was to call it a tax. People told me at the time "well the President says that is isn't a tax", and I told them that it didn't matter what the President said, it was either unconstitutional or it was a tax. The fact that mass media reporters missed this obvious fact has always been something that is strange to me. Congress doesn't have the constitutional right to make me buy an umbrella, but they do have the right to charge me a tax for not owning one. It was the only way that the mandate could rationally avoid being found unconstitutional.

I'll have to go search some of those archive tools to see if I can find the posts... Anyone who was around willing to vouch for me here?

No need to search, you have high credibility (well, at least with me).

Why did the MSM miss the obvious fact? Too busy cupping obama's balls re: not a tax?