![]() Justice Roberts, who joined part but not all of that ruling, said that it was possible to uphold the Mississippi abortion law that was at issue without completely overturning Roe v. ![]() INSKEEP: I wonder if this matter of ruling where it's not needed also is applicable to the abortion ruling. LEVEY: There is no - absolutely no mention of the term major questions. INSKEEP: And just to be clear, the major questions doctrine is a recent development of conservative legal scholars that does not appear in the Constitution. But again, I tend to favor, as an originalist and a textualist - I believe, you know, that where it's not clear, you generally defer to the structure and intent of the Constitution, which is, again, for Congress to make policy. LEVEY: I do not mean to say that there's not, you know, room for debate there. LEVEY: And again, I think, you know, I certainly don't. And the court majority decided they shouldn't. ![]() INSKEEP: But there was language in the law that said that the EPA should come up with the, quote, "best system of emissions reduction," which they said they did. But on major questions, for example, whether an environmental agency was really meant to have the power to - you know, to regulate anything connected to climate change, that's something where people would ordinarily expect Congress to decide it, not bureaucrats. And I think that on small technical points, you probably do have to defer to bureaucrats as a - you know, as a practical matter. And Congress can delegate authority to them to do things. And that's what you're referring to as the fourth branch of government. INSKEEP: But let me just stop you there for a second because there is an executive who is allowed to run the government. LEVEY: Yes, that is exactly what I mean by the fourth branch of government. Is that what you mean by the fourth branch of government? INSKEEP: You mean the administrative state, the bureaucracy. So even that fourth branch of government, with all the power that it has, is really extra-constitutional. There's no mention of the fourth branch of government that we now have. If you look at what the Constitution actually says, it gives policymaking authority to Congress. LEVEY: Well, it's sort of a narrow version of textualism. There was text in the law that gave the Environmental Protection Agency authority to regulate, but the justices instead used a recent development called the major questions doctrine to say that they can stop a regulation when they feel it goes farther than they understand the law to allow. INSKEEP: In the same paper where you wrote, The Washington Post, there was another article by Adrian Vermeule - he's a law professor - who notes that from his perspective, the court majority abandoned textualism when they felt like it in the ruling against the EPA. Again, this term, I think they were pretty straight down the line. If what you're asking me is, do they ever show bias? - I'm sure they do. LEVEY: Well, I think in this term, most of the big decisions - they went the textualist way. INSKEEP: Are they always textualists or only sometimes? It doesn't even contain a general right to privacy. If you want to understand why they ruled one way on guns and another way on abortion, it's because the Constitution contains an explicit Second Amendment that guarantees the right to keep and bear arms, whereas the Constitution - not only does it not contain a right to abortion. I prefer the term textualist, but they're often used in the same way. And if you look at why, it's because it's a textualist court. So the court could've been 100% conservative outcomes. They turned down a vaccine mandate case from New York. Conservatives were very unhappy with their decision about the Remain in Mexico policy. What's the case that those rulings are not ideological?ĬURT LEVEY: Well, the case is that the court - if they wanted to decide all cases with a conservative outcome, they could have, and they didn't. Granted, some rulings have gone the other way, but the big ones all went one way in rapid succession. You write, this court is not ideologically motivated, which, of course, is hard for some people to accept because they just produced what can easily be seen as Republican outcomes on abortion rights, gun laws and climate regulation. He is on the executive committee of the Federalist Society, which promotes a certain kind of conservative judge. In The Washington Post, Curt Levey made the opposite case, saying the justices are just applying the law. The biggest of them prompted accusations that the court has become a Republican legislature imposing its partisan opinions. The conservative majority issued many big rulings last month. You know, I've been reading opinion articles about the Supreme Court.
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