Those who want Biden to stay in the race point out that in 2016, after the Access Hollywood tape came out, there were calls for Trump to drop out. Trump stayed in and won. There are some significant differences. The tape occurred years ago. Also, Trump’s sleaziness was well known. Moreover, it did not affect his ability to be president. In contrast, Biden’s situation is current, and it appears to affect his ability to perform his duties as president and is only going to get worse over time. Hopefully, Biden will not let his ego keep him on the path to disaster. The logical new team is Kamala Harris as president and Pennsylvania Governor Josh Shapiro as vice president. It would be untenable to pass over Harris and pick another choice for president. It would alienate minorities and could also alienate women if a male is chosen. Also, it would be a problem dealing with the funds that were raised for a Biden-Harris presidential run. Although Harris’s campaign four years ago for president did not go too well, at least she has run for president, unlike the other choices being floated. Shapiro would be an excellent choice for vice president since he is a popular governor from a swing state with a sizable number of electoral votes. It would be the east-west connection. Maybe it is wishful thinking on my part because Shapiro would be the first Jewish vice president.
Now on to my main topic. The current United States Supreme Court has been referred to as being a very conservative court. That is a misnomer. This Court is a radical court.
The idea of being conservative is following traditional norms. One of the bedrocks of the United States Supreme Court is Stare decisis. Stare decisis is a Latin phrase meaning “to stand by things decided.” Stare decisis is the doctrine that courts will adhere to a precedent in making their rulings. This applies even where the Court may not agree with the prior decision. Like any rule, there are exceptions when they are narrow and rarely occur.
There are good reasons why Stare decisis is an important doctrine. It helps create certainty in the Court’s rulings. Even if the ideological makeup of the Court changes, the Court will not overrule prior decisions.
This current Court seems not to care about Stare decisis. First it overruled Roe v Wade, although it had been the law of the land for 49 years. You would think that the Court, seeing the negative fallout from upsetting a longstanding precedent, would be hesitant about doing it again. Not this radical court. As the dissent in the case of Loper Bright stated, “For 40 years, Chevron... has served as a cornerstone of administrative law, allocating responsibility for statutory construction between courts and agencies… If the court finds, at the end of its interpretive work, that Congress has left an ambiguity or gap… it should usually be the agency, within the bounds of reasonableness (to decide the content of a statute.) That rule has formed the backdrop against which Congress, courts, and agencies—as well as regulated parties and the public—all have operated for decades. It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.” Instead, the Supreme Court, in a six to three decision, has taken the power away from agencies who have the expertise and has given it to the Federal Courts.
Then in another Supreme Court case, Corner Post, as noted by the dissent, “Three-quarters of a century after Congress enacted the APA (Administrative Procedure Act), a majority of this Court rejects the consensus view that, for facial challenges to agency rules, the statutory 6-year limitations period runs from the publication of the rule.” Instead, it holds that an APA claim accrues “when the plaintiff is injured by final agency action.” This was also a six to three ruling, with the same six in the majority as in Loper Bright.
The practical effect will be to allow legal challenges on any administrative rule at any time no matter how long the rule has been in existence. This is a recipe for confusion and uncertainty, because there is always a chance that a rule at any time could be shot down by the Courts.
Traditionally, cases have moved quicker in Federal Courts than in state courts because fewer cases are brought in Federal Court. These two decisions will open up the floodgates for new areas of litigation swamping the Federal courts.
The Supreme Court, by mocking Stare decisis, has made it more likely that it will be reversed by a subsequent group of justices. It could not happen to a more deserving group.
Warren S. Hecht is a local attorney. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.
