by Michael Liss
January 1, 2024. Happy New Year! Just eleven months and five shopping days before Election 2024. Whether you find it comforting that 2024 also happens to contain an extra day might be the best marker of how Political Seasonal Affective Disorder has impacted you. Personally, I haven’t been sleeping particularly well.
The New Year is often about taking stock, and if I’m counting correctly, this is my 101st essay for 3 Quarks Daily. The majority have been about American history, American politics, and what is ostensibly American law but looks a lot like politics.
Last August, as the 49th anniversary of Richard Nixon’s resignation drew near, I started a series about the chaos of the late 1960s/early 1970s and how Presidents can lose their hold on the White House. That led me back to two men, one famous, the second memorable, who, to this day, in different ways, have had an impact on the way I think.
I will come to Henry Kissinger shortly, but I first want to spend a little time celebrating Walter Kaufmann. This is not the prolific philosopher Walter A. Kaufmann who was a pre-World-War-II expat from Germany, got his PhD at Harvard, and spent most of his career at Princeton. My Walter Kaufmann is Walter H. Kaufmann, who was also a German expat, got his PhD at the New School for Social Research, and, in 1953, published Monarchism in the Weimar Republic. My Dr. Kaufmann liked a cigar, a good story, and a better glass of wine. He also taught at my high school—German to those less linguistically challenged than I was, AP European History to voluble (in English) types like me. Dr. Kaufmann had a certain cool about him, in no small part for having gone to grade school with Werner Klemperer, son of the conductor Otto Klemperer, and, to Dr. K’s enduring dismay, the future Colonel Klink.
Like all good little suburban students, we took AP classes to take AP exams to score high enough to get college credits. Dr. K was a realist, but wanted to teach this subject on his terms. The word went out that no one got higher than a 93, his logic being that no one could know anywhere near 100% of the subject matter. So, if you were in the running for Valedictorian or Salutatorian and/or cared very much about your final class rank, to learn at the feet of Dr. K came with some obvious risks.
Although I was more interested in American history, I took the class. I found he and I shared a personal quality—neither of us had any sitzfleisch. I had no choice but to sit, but, when Dr. K taught, he sometimes wandered up and down the aisles, talking, pointing, asking questions out of the blue.
He was a fantastic teacher, a great performer and storyteller. He wasn’t satisfied with just the kinds of things that showed up on an AP exam, like names, dates, battles, and monarchs. He wanted more out of us, and he gave more: context and cultural background, personalities, why things happened instead of just noting they did happen.
He had no patience for Senioritis. No mere half-hearted term paper for him—instead, you had a senior thesis, on a book he personally would assign based on his observations of you in the class.
When Dr. K handed you the book, it came loaded with expectations. Mine was Henry Kissinger’s 1957 A World Restored: Metternich, Castlereagh, and the Problems of Peace 1812-1823. How he knew I can’t tell you, but he hit a home run. I loved it.
A World Restored is based on a Kissinger doctoral thesis from Harvard. The book is not an easy read—not then, and not a few months ago, when I tracked down a used, out-of-print paperback version from the Strand. I was amused to see the original owner-reader used a pink highlighter—on just two pages in the middle—and then gave up.
I can understand this. The writing is a little formal, at times a little grand. Each sentence has a lot in it. It wasn’t possible to consume in one reading. You entered the web of the primary protagonist, Austria’s Count Clemens Von Metternich, and watched as he stage-managed a delicate dance of power among allies turned rivals, rivals turned allies, and all the parties looking for spoils.
The story of Napoleon is interesting enough, but what drew me to the book was the centralizing theme that was also relevant in creating American government. Kissinger refers to the “great clockwork” of the 18th Century—a means for countries (and aspiring countries) with differing national interests and domestic political economies to find enough common goals to keep the peace.
This sounded a lot like James Madison, as he considered competing interests on a domestic level. The “clockwork mechanism” is evident in Madison’s thinking in the Federalist Papers, and in the drafting of the Constitution itself. Three branches of government with explicit grants of authority, but some overlap to create checks and balances. Representation, federalism, separation of power, and “the extended republic” as providing not just structure, but protections to both the states and the citizens of those states. Madison was a realist. He understood that the finished product, the ratified Constitution, would only work optimally if the branches were independent of one another in their respective spheres, and if they weren’t driven by faction. The price of factionalism would first be the loss of good government, and eventually freedom itself.
An apparent weakness, acknowledged by Madison himself, was the obvious—two of the three branches (Executive and Legislative) would surely, at one point or another, possess the means to act in furtherance of faction, to push agendas instead of good government. Then the only vindication of minority rights would have to come from the third branch, the Judiciary, which he believed to be the weakest.
Madison’s fears came to pass, but so did many of his hopes. In effect, American politics has developed into a sort of see-saw, with the fulcrum shifting depending on who has control of which branch, and what ideology is predominant in those respective branches. You keep the peace by having at least one branch of government push back when the forces of faction jump over the guardrails. You avoid constant warfare by finding compromises where possible, bearing in mind that a maximalist approach generally causes lasting damage. There are times when you need a Metternich.
Two hundred plus years of the system have shown the durability of Madison’s structure, but, in one critical area, a breach has emerged. We now have a federal judiciary that contains a large number of determined ideologues, selected for both their politics and their activism, assuming roles Madison didn’t anticipate, and expressing powers Madison would not have thought they were given.
Let’s look at some of the matters, formerly thought of as settled, into which the Judiciary has seen fit to inject itself.
The first is the “abortion pill” mifepristone pair of cases, Food and Drug Administration v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine. When the Dobbs decision unleashed, as the conservative majority expected it to, a raft of state-level anti-abortion legislation, it also empowered litigants, like in these cases, to seek out a friendly jurist. None is friendlier than Texas’s Judge Matthew Kaczmarek. His Honor is from the “Because I Said So” wing of the Federalist Society, taking each new matter as an opportunity to do some conservative legislating from the bench.
Mifepristone was approved by the FDA in 2000, and its use was expanded in 2016 and 2021. Used in combination with another drug, it can be taken up to the 70th day of a pregnancy and is considered to cause fewer complications than a surgical abortion. Coupled with French studies that came before the original FDA approval, there is clinical data going back more than 35 years showing its efficacy and relative safety. But for its purpose, its place in the formulary would be entirely uncontroversial.
“But for its purpose” is, of course, its problem, and the plaintiffs included a group of anti-abortion doctors who insisted that FDA approval should never have been granted in the first place. Their complaint essentially boils down to the FDA’s not taking into account their personal feelings. Kacsmaryk happily swallowed it whole, and invalidated the entire original FDA approval, relying on his “technical” expertise as an anti-abortion activist. He also invalidated the later expansions of use. An appeal to the hard-right Fifth Circuit Court of Appeals gave a partial victory—the original FDA approval was still good, as Plaintiffs were held time-barred from raising it more than two decades later, but the ban on later uses remained. The Supreme Court rejected the appeal from the anti-abortion challengers with respect to the 2000 approval, but took up the rest of the case, agreeing to review the Fifth Circuit’s blessing to block the expansion of usage.
OK, they like to shackle pregnant women in Texas…but why (other than on principle) should I worry about that in New York? Because Kacsmaryk invalidated both the 2000 approval and the expansion of usages nationwide. If his reversal of the initial FDA approval had held, every woman, in every state, Blue, Red, or in-between would have been denied access to the drug. As it is, Kacsmaryk’s blocking of the 2016 and 2021 expansion of use remains in place until SCOTUS says otherwise, meaning that women who would be in those categories can no longer receive the treatment.
SCOTUS had supposedly left states to decide on their own—the quote from the Opinion in Dobbs was clear enough: “[I]t is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Clear, but not a deterrence to the long arm of Judge Matthew Kacsmaryk.
As these two cases make their way to SCOTUS, as they are briefed and argued, as the advocates for both sides are questioned by the Justices, we are going to get a chance to see if and how the five ultra-conservatives on the Court can reconcile their avowed admiration for Federalism with their personal preferences on abortion. The Alliance cases are that opportunity. Are they going to block the FDA’s 2016 change in usage permanently, after it had 16 years of clinical data (now 23 years of clinical data)? How many decades of use would be a safe harbor to enable an activity they personally disagree with? With what finely chiseled reasoning would they be able to fall back on, considering their lack of technical expertise?
I generally don’t like the abortion cases because I think they make for bad law and worse discussions. But if the hard right on SCOTUS gives even a partial victory to Kacsmaryk and the Fifth Circuit, they are, quite deliberately, opening the door for suits exactly like this one in different areas. Just find a new set of plaintiffs, give them some dubious arguments about standing and the law itself, peddle the entire package to an ideologically motivated judge or judges, and you can parlay that into at least a short-term national ban, and, if you are particularly fortunate, stop a President from acting on a change in policy, gut an agency, or invalidate long-standing practices. That is exactly what is going on. In fact, one of the cases SCOTUS will soon decide is whether the Fifth Circuit was correct in invalidating an entire federal agency, the Consumer Finance Protection Bureau…founded July 21, 2011.
Wait, how is that possible? Ian Milhiser of Vox recently wrote, “The federal judiciary’s process for filtering out meritless cases is broken.” Millhiser is a liberal, but it’s a very sharp take. SCOTUS grants certiorari on but 60-80 cases a year, yet there are thousands brought in federal court each year. Most do not involve Constitutional issues, or, if they do, those issues have been long decided. Ordinarily, the district court judge would take the minimalist approach and go for consistency and precedent.
The losing party at the district-court level can appeal to a three-judge panel of the appropriate circuit (an intermediate-level federal appeals court), and a second layer of “filtering” occurs—more cases get weeded out. Lose at the appeals-court level, and you can choose to appeal to the Supreme Court—but the hitch is they don’t have to agree to hear it. Where SCOTUS historically has stepped in is where there is something truly new (“first impression”), or there is a disagreement in the way the circuit courts have interpreted the law, or SCOTUS has signaled that a precedent is ripe for reconsideration.
The “filtering” is imperfect, but has mostly worked. District court judges who were too far out of the mainstream, either Left or Right, would get reversed at the appeals-court level. The same would apply if a particular circuit veered too hard in one direction or the other—it, too would get reversed. This, coupled with Judicial Restraint, led to an incrementalism that enhanced the appearance (and often the reality) of impartiality and stability.
This system has broken down in several ways. Trump packed the Judiciary with a large number of Federalist Society darlings with ideological scores to settle. Matthew Kacsmaryk is far from the only one. Kacsmaryk would be somewhat less dangerous if the Fifth Circuit weren’t so radicalized, but that entire court also seems to enjoy the extreme. The current Supreme Court docket reflects this: a disproportionate number of cases involve Fifth Circuit initiatives to reverse Biden policies, to reanimate Trump ones, and to invalidate or, at the very least, hamstring federal agencies with which the judges have ideological disagreements.
Of course, even the Fifth Circuit’s constant overreach might just be a costly nuisance, if SCOTUS weren’t dominated by conservative cowboys who want to “fix things” and so essentially invite these types of cases, knowing that even partial victories will damage the targets of their ire.
I said before that anything about abortion makes for bad law and bad discussions, but, if the only controversial issues being litigated before SCOTUS were social issues, we wouldn’t have nearly the instability that we have right now. That’s because that there are several other cases before it that strike at the heart of what conservatives contemptuously called the “regulatory state.” It’s a great buzzword, conjuring up visions of a Golem-like apparition, but, in fact, the folks who have no problem regulating every aspect of your personal life become very attached to liberties when they involve business. The CFPB case is an excellent example of it, but the list is a long one—and growing.
First, what is in the regulatory state? Congress passes and the President signs into law a bill that creates an agency—let’s call it the EPA, or the FDA, or the CFPB. The idea is to delegate a degree of responsibility for carrying out the policy to a group of people trained in the field. After all, we don’t hire Congressmen and Senators because they are experts in tropical diseases, or banking regulations, or threshold levels for contaminants in the water. Instead, we create an agency that objectively possesses a level of expertise above that of the public at large. We grant these folks a certain amount of regulatory authority, on the assumption that they possess the tools to use it well. We don’t micromanage their decisions, primarily because they know more than we do. One would think that, and it certainly has been the tradition, but SCOTUS sees an opportunity to get into the policy-making business, without the encumbrance of actual technical knowledge.
In January, SCOTUS will hear arguments on two cases that strike at the heart of how these agencies work. Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo are ostensibly about whether the fishing industry can avoid payment of fees that are used to pay the cost of industry compliance with fishery management. But that narrow question is not what interests the conservative majority. Instead, what they want to do is take another look at a critical 1984 decision called Chevron v. Natural Resources Defense Council.
Chevron, and what is known as “Chevron deference” (Federal courts should defer to the reasonable agency interpretations of a law) has been the governing approach for four decades. Conservatives have hated it for an identical period, but even more so now, when so many of the Justices see Chevron deference as a deterrence to their making policy for the country. It’s probably not long for this world, but what’s unclear is how expansive SCOTUS wants to get. Remember, it doesn’t have to step into each case that comes before it. In circumstances where the litigant has a beef with a particular regulation, that litigant need only to find the friendly judge in a philosophically sympatico circuit. Then SCOTUS doesn’t have to take the case at all—it can deny cert, and the circuit court’s decision stands. Regulation nuked.
There have to be some institutions, some agencies, that are established enough to be beyond this wrecking ball? Not necessarily. The SEC has been around since the New Deal. Its mission statement includes “protecting investors, maintaining fair, orderly, and efficient markets, and facilitating capital formation.”
Sounds bad, right? That’s where our old friends in the Fifth Circuit were waiting to help. In 2022, the Fighting Fifth issued a ruling in Jarkesy v. SEC that attacks the way the SEC adjudicates complaints by investors by what are called administrative law judges (ALJs). The ALJs are career civil servants with special expertise in the areas they serve—they come out of the agency involved rather than being appointed by the President (as Article III judges are). Roughly 30 different agencies employ approximately 2000 ALJs (by contrast, there are fewer than 900 Article III judges), and the Fifth Circuit would do away with most of them—and a good portion of the SEC’s ability to conduct business. That would be fine for the Plaintiff, a conservative talk-show host named George Jarkesy. He was accused of fraud in the operation of two hedge funds, marking up securities to take higher management fees. The SEC brought the action to an ALJ, and, after an evidentiary hearing, the ALJ ordered civil penalties and disgorgement. Mr. Jarkesy was miffed and brought in counsel to challenge, expecting to find a friendly forum. There is no doubt he has.
What’s interesting about this case is that the Fifth Circuit didn’t stop at simply saying the Plaintiff had a Seventh Amendment right to trial by jury (which he’s likely to get affirmed by the Supreme Court). It also trafficked in the “nondelegation” doctrine, a fringe approach favored by right wing theorists, which radically limits Congress’s ability to delegate to agencies discretionary decisions. Conservatives on SCOTUS might not be ready to take that next step, because the topic wasn’t raised in oral arguments, but let’s not sleep on it.
In fact, let’s not sleep on anything. Look at these cases, one by one, and you can discern a pattern, one deeply corrosive. It’s not in the least about freedom, about liberating you from the evils of big government. It is, instead, a power grab, a lunge to replace one set of decision makers with another, even more remote from the desires of a majority of the voters.
Conservatives have always claimed Madison for their own, and that might have had some truth to it in times past. Now, his self-regulating system of checks and balances, of competing interests compromising, of Federalism, of leaders being answerable to the voting public is under assault—by conservatives who act as if they had the divine right of kings.
Guard your rights, cherish them. Beware of incrementalism in the erosion of your rights, of “it could have been worse.” Be alert to those who say they have no more territorial demands. The freedoms we are blessed with in this country, a place to which both Henry Kissinger and Walter Kaufmann could come for asylum, are being stress-tested. They could disappear, first gradually, then suddenly.
The clock has struck Midnight, the ball has dropped, and as tired as we might be, let’s not sleep on anything.
Happy 2024. May it be a good year for all of you.