Alexander Bickel's Bowels Would Gush

 Alexander Bickel wrote against the Warren Court expanding judicial power in enlarging federal civil rights protections.

Now, Neil Gorsuch wants even more given to the United States federal courts - meaning, in the end, Supreme Justices of such sterling ethical qualities as Samuel Alito and Clarence Thomas, if not Gorsuch, himself.

Neil Gorsuch Makes the Case for a Judicial Power Grab

Reality check: It’s the rare proletarian who gets investigated by the SEC. Jarkesy’s was a routine case of regulatory enforcement of the type the administrative state has been performing since Walter Winchell ruled the airwaves. Most of the relatable victims whose stories Gorsuch tells in Over Ruled never landed in the kind of trouble Jarkesy did, and they came out more or less intact from their tangles with the administrative state.

Do regulatory agencies make mistakes? Of course they do, and when they do those mistakes ought to be corrected. But doctrinaire enemies of the administrative state aren’t fighting for the Marty Hahnes. They’re fighting for the George Jarkesys. Whether that’s true of Gorsuch I can’t say, but at the very least Gorsuch is fighting for judges like himself to determine the Jarkesys’ fate. The last term’s war on regulatory power was, as Associate Justice Sonia Sotomayor noted in her dissent in SEC v. Jarkesy, “a power grab” that “prescribes artificial constraints on what modern-day adaptable governance must look like.” Over Ruled may present itself as a book about the law, but it’s really a book about power. It’s an argument for taking power away from the administrative state and giving it to judges instead.

The New Republic article makes the point that Gorsuch makes a good point about law over-criminalizing behavior. I thought the same thing decades ago. My opinion was - is - that the movement against the regulatory state resulted is why legislatures promoted criminal penalties for this and that. Instead of administrative agencies, we get regulation by the police and criminal prosecutors.

sch 8/9