SUPER-CANONS

Abstract

Especially since 2017, the Roberts Court has been imposing a new regime onto American public law. The new regime is paring back the authority of expert agencies to implement their delegated responsibilities, reducing the power of Congress to make long-term delegations while enhancing the power of the states and the President (and the Court), protecting and encouraging expression of religious values in public and commercial fora, limiting women’s rights to reproductive choice, and reducing the capacity of state and private institutions to inculcate diversity and inclusion.

This Article maintains that the new regime is driven not by constitutional and statutory precedents, nor by a neutral reading of legal texts and original public meaning. Relevant legal materials are filtered through political philosophies valued by the majority Justices. Inspired by Friedrich von Hayek, Edmund Burke, and Patrick Henry, the Roberts Court’s ideal America is not an administrative state dictating enlightened plans for a structured market economy, a woke pluralism, and a society of rights-entitled citizens.  The majority are moved by a vision that starts with our historically-situated American culture and traditions, whose dynamics are driven not by collective reason and scientific expertise, but by the spontaneous play of innumerable minds within a matrix of moral values, beliefs, and traditions. 

This Article applies that suite of closely related political philosophies to understand the Court’s big regime-changing decisions, which have been widely criticized as lacking support in standard legal sources (text, structure, precedent).  The Justices have tried to bridge the gap by translating the political philosophies into novel or supercharged clear statement rules and by reading statutory and constitutional texts through the lens of “Super-Canons” reflecting the political philosophies.  This is a breathtaking constitutional revolution seeking to remake America in light of a vision that is similarly breathtaking.

Can the Roberts Court’s vision and doctrinal regime change be defended?  The political philosophies reflected in the Super-Canons are strongly related to the “Old Whig” tradition that forms an undeniable foundation of American constitutional history. And it is a vision that almost half the country seems to accept—but more than half the country has rejected. Also, the Super-Canons represent a challenge to the ability of the United States, and the world community, to confront the existential challenges facing us in the next thirty years. Finally, the Court’s monarchical tilt in its presidential powers jurisprudence is at war with the philosophies of the Super-Canons and with the rule of law itself.