Welcome Back To A Pre-New Deal America

From a longtime reader and top echelon DC lawyer:

Agree with what you just wrote.  But don’t separate what the Court has done on guns and Roe—and what’s surely coming on affirmative action in the cases already granted for next term and what Justice Thomas is foreshadowing on other constitutional rights—from the Court’s decisions on federal agency authority.  And the long series of rulings whittling away at individuals’ ability to obtain relief in court when injured by violations of the Constitution and federal law—rights don’t mean much when there is no remedy for violations.

This is a Court with a broad agenda to reshape America dramatically, and pre-New Deal America increasingly appears to be the legal model. That includes eliminating constitutional protections against government action recognized over the past 75 years, and greatly enhancing a few, favored constitutional rights. And, just as importantly, diminishing the federal government across the board by tying the hands of federal agencies—which, in our era of congressional paralysis, means crippling the federal government because Congress will not be able to fix the (newly-discovered) shortfalls in existing laws. 

Progressives were unable to produce a governing coalition for the changes they seek. But it isn’t at all clear that a majority favors the very different America that the Court majority has in mind. Especially when hard-won protections disappear and new crises arise that the federal government is unable to address. But that is the America we are going to get.

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