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Separation of powers

This week, the U.S. Supreme Court heard two cases on the Biden student loan forgiveness executive order. The cases, Biden v. Nebraska and Department of Education v. Brown, are the most significant cases in years addressing separation of powers issues. Presidents in both parties have pushed the limits on executive orders, and Congresses led by both parties have been guilty of abdicating authority to the executive branch. Such actions undermine representative democracy. It looks like this Court is poised to place limits on executive action, a win for those interested in a conservative judiciary. You can read more about the cases here and here.

More separation of powers

Click here to read an excellent piece by Manhattan Institute’s Ilya Shapiro on legitimacy and separation of powers issues faced by the U.S. Supreme Court.

Partisan Judicial Elections

I am persuaded that, ideally, judges should not run in partisan elections. This is premised, however, in the idea that judges should interpret the law, not make it. The more activist a court becomes, the stronger the argument for electing the judges in a partisan manner. If judges are going to make public policy, then they need to be held accountable to the public through the democratic process. Wisconsin is enmeshed in the most expensive judicial contest in history. Millions of dollars are pouring into the state to finance a partisan election to a State Supreme Court vacancy. The process is not good for the perceived legitimacy of the Court, and yet it may be necessary to hold the Court accountable. We’ll see. You can read more about the race here.