The Supreme Court Has Hit Rock Bottom

The three-sentence explanation the court gave in Wilcox, Kagan argued, was insufficient to justify Wednesday’s order. “So only another under-reasoned emergency order undergirds today’s,” she continued. “Next time, though, the majority will have two (if still under-reasoned) orders to cite.” At that point, Kagan noted, the court’s reasoning would be “turtles all the way down.” (Kagan also wrote the dissent in the Wilcox case; she appears to be the liberal justices’ point person on this issue.)

The immediate impact of Wednesday’s order is that Trump will be able to dismantle the Consumer Product Safety Commission, which will, in turn, make it easier for companies to keep unsafe and dangerous products on the market. This is not a good thing for Americans, of course, but it is a great boon to those companies that want Americans to keep buying their unsafe and dangerous products. In the longer term, Wednesday’s ruling is a further sign of how the Supreme Court is getting worse during Trump’s second term: more lawless, more arbitrary, less judicial, and less respectable.

Here is how the federal government has generally worked within living memory. Congress generally passes laws to provide the scaffolding for federal agencies to regulate the national economy. In theory, Congress could pass a new law every time it wants to approve a cancer drug, or ban a pesticide, or do any of the other mundane but vital tasks that come with governing a modern industrialized economy. Instead, it created agencies to regulate these things within the bounds that Congress authorizes.