A Valley Viewpoint Narrative
I spent part of this morning on the radio talking about the new Supreme Court term — the cases, the constitutional questions and the decisions that could have consequences long after this term ends.
And after I left the microphone, one thought stayed with me.
The nine people in the black robes are back at work.
And before anyone begins cheering because we supposedly have a “conservative Supreme Court,” allow me to spoil the party.
I don’t particularly want a conservative Supreme Court.
I don’t want a liberal Supreme Court, either.
I want a constitutional Supreme Court.
There is a difference.
The cases coming before the Court touch some of the most combustible issues in America: immigration, guns, religious liberty, climate change, presidential authority and the power of government itself.
Different cases. Different laws. Different political constituencies.
But as I said on the radio this morning, scratch beneath the surface and you’ll discover that many of these disputes eventually arrive at the same question:
Who gets to decide?
That’s the question I’m increasingly interested in.
Not whether Donald Trump wins.
Not whether Democrats win.
Not whether Republicans get to spike the football on cable television.
Who has the power?
And, perhaps more importantly:
Where does that power stop?
Start With Guns
The Court is confronting another major Second Amendment fight involving state restrictions on AR-15-style semiautomatic rifles.
That matters everywhere.
It certainly matters in New York.
We’ve been through this before.
In District of Columbia v. Heller, the Supreme Court recognized an individual right to possess firearms.
Then came New York State Rifle & Pistol Association v. Bruen — a case born right here in New York — in which the Court emphasized America’s historical tradition of firearm regulation when evaluating modern restrictions.
Now comes another unavoidable question.
Can government prohibit an entire category of semiautomatic rifles commonly owned by Americans?
Gun-control advocates will argue that states need broad authority to protect their citizens from weapons they believe pose an extraordinary public-safety threat.
Gun-rights advocates will argue something equally fundamental:
A constitutional right doesn’t disappear because politicians find the exercise of that right frightening or unpopular.
That’s precisely when constitutional rights matter most.
If the Bill of Rights protected only things government approved of, we wouldn’t need a Bill of Rights.
Immigration Is Coming Back Too
The Trump administration’s immigration policies are again generating constitutional battles.
And here’s where I occasionally irritate everybody.
I believe a sovereign nation has not merely the right, but the responsibility, to enforce its immigration laws.
I support immigration enforcement.
I support ICE performing its lawful mission.
I also believe government power requires constitutional boundaries.
Those aren’t contradictory positions.
They’re supposed to be the American position.
Cases involving deportations, detention and the process afforded to people facing removal will force the Court to confront the intersection of executive authority and individual due process.
And I’m perfectly capable of supporting the enforcement of immigration law while still asking:
What process does the Constitution require government to follow?
That’s not weakness.
That’s constitutional government.
Because here’s the dangerous game we increasingly play in America.
When our guy is president, executive power suddenly looks wonderful.
When the other guy becomes president, we suddenly rediscover James Madison.
Maybe we should care about constitutional limits regardless of who occupies the Oval Office.
There’s a novel idea.
Then There’s Religious Liberty
Another important case this term involves a Catholic preschool seeking to participate in Colorado’s publicly funded preschool program while maintaining its religious beliefs.
The government essentially says:
If you’re accepting public money, you follow the rules of the public program.
The religious institution responds:
Government cannot offer a benefit to everybody and then tell religious organizations that participation requires abandoning their religious convictions.
That’s not merely a fight about preschool.
It’s a First Amendment fight.
At what point does a legitimate government condition become government coercion?
And when government opens a public program to private institutions, how much authority does it have to tell religious institutions what they must believe or practice?
Those questions extend far beyond one Catholic school in Colorado.
Climate Change Goes to Court
Then there are climate lawsuits against energy companies.
And here again, forget for a moment whether you like oil companies.
That’s not the constitutional question that interests me.
The larger question is whether sweeping national policy should be created through Congress — where legislators debate it and eventually answer to voters — or through lawsuits brought in individual state courts.
Climate policy affects virtually everything.
Energy prices.
Transportation.
Manufacturing.
Jobs.
Electricity.
The economy.
So if America is going to fundamentally restructure energy policy, perhaps somebody ought to explain why that shouldn’t happen through the people we actually elect to make national policy.
Remember Congress?
They’re the several hundred people we send to Washington who occasionally appear on television explaining why somebody else should solve the problem.
And That’s Really the Story
This was the point I kept coming back to during this morning’s radio conversation.
We spend enormous amounts of time arguing about the outcomes of Supreme Court cases.
Conservatives want one result.
Liberals want another.
Cable television assembles two panels.
Everybody yells.
Commercial break.
Repeat.
I’m increasingly interested in something deeper.
Who possesses the power?
Can a president do this?
Can Congress delegate that?
Can a governor prohibit this?
Can a state court impose that?
Can an administrative agency invent a rule Congress never actually passed?
Can a federal judge stop a president’s policy nationwide?
And perhaps the most uncomfortable question of all:
Who watches the people doing the watching?
I’ve spent enough time watching our federal court system to reject the fairy tale that judges somehow become immune from human weakness the moment somebody hands them a robe.
Judges are human beings.
They make mistakes.
They have philosophies.
They have biases.
They exercise enormous power.
And enormous power should always invite enormous scrutiny.
That applies to presidents.
Governors.
Legislatures.
Prosecutors.
Administrative agencies.
And yes — judges.
Especially judges.
The Constitution Isn’t a Team Jersey
There will probably be Supreme Court decisions this term that I applaud.
There may be others that make me want to throw something at the television.
That’s constitutional government.
The Court’s job isn’t to make conservatives happy.
It isn’t to make liberals happy.
And it certainly isn’t to guarantee Donald Trump, Kathy Hochul or anyone else a favorable political outcome.
Its job is to interpret the Constitution and determine where government’s authority ends.
We’ve become dangerously comfortable judging governmental power according to whether our side happens to be exercising it.
I don’t buy that.
If a power would terrify you in the hands of the politician you despise, perhaps you shouldn’t be quite so enthusiastic about giving it to the politician you love.
Because politicians change.
Parties change.
Presidents change.
The Constitution doesn’t change every four years.
At least it isn’t supposed to.
So as this new Supreme Court term unfolds, I’ll be watching the gun cases.
I’ll be watching immigration.
I’ll be watching religious liberty.
I’ll be watching the fights over executive authority and the power of the courts themselves.
But mostly, I’ll be watching one thing.
Power.
Who has it.
Who wants more of it.
Who is willing to surrender it.
And whether nine people sitting inside that magnificent building at One First Street are still willing to tell the rest of government the two words government has never particularly enjoyed hearing:
You can’t.
And maybe that’s the most important job the Supreme Court has.
Not deciding who wins.
Deciding where power stops.
To comfort the afflicted… and afflict the comfortable.
