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Super-Canons
Eskridge Jr., William N.
Eskridge Jr., William N.
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Super-Canons.pdf
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Abstract
Especially since 2017, the Roberts Court has been imposing a new
regime onto American public law. The new regime is paring back the authority
of expert agencies to implement their delegated responsibilities, reducing the
power of Congress to make long-term delegations while enhancing the power of
the states and the President (and the U.S. Supreme Court itself), protecting and
encouraging expression of religious values in public and commercial fora,
limiting women’s rights to reproductive choice, and reducing the capacity of
state and private institutions to inculcate diversity and inclusion.
This Article maintains that the new regime is not entirely driven by
constitutional and statutory precedents, nor even by a neutral reading of legal
texts and original public meaning. Relevant legal materials are filtered through
political philosophies valued by the majority Justices. Inspired by Friedrich von
Hayek, Edmund Burke, and Patrick Henry, the Roberts Court’s ideal America
is not an administrative state dictating enlightened plans for a structured
market economy, a woke pluralism, and a society of rights-entitled citizens. The
majority is moved by a vision that starts with our historically situated
American culture and traditions, the dynamics of which are dominated not by
collective reason and scientific expertise but by the spontaneous play of
innumerable minds within a matrix of moral values, beliefs, and customs.
This Article applies that suite of closely related political philosophies to
understand the Court’s big regime-changing decisions, which have been widely
criticized as lacking support in standard legal sources (text, structure,
precedent). The Justices have tried to bridge the gap by translating the political
philosophies into novel or supercharged clear statement rules and by reading
statutory and constitutional texts through the lens of “Super-Canons” reflecting
the political philosophies. This is a breathtaking constitutional revolution
seeking to remake America in light of a vision that is revolutionary.
Can the Roberts Court’s vision and doctrinal regime change be
defended? The political philosophies reflected in the Super-Canons are strongly
related to the “Old Whig” tradition important to the Founding Era of American
constitutional history. And it is a vision that half the country seems to accept—
but half the country does not. Also, the Super-Canons represent a challenge to
the ability of the United States, and the world community, to confront several
existential challenges facing us in the next thirty years. In a final irony, the
Court’s recent presidential-powers jurisprudence is at war with the philosophies
of the Super-Canons and with the rule of law itself.