Paul Murray: The powerful role the court system has on our freedoms

As a life-long Roman Catholic, the 19th century British historian Lord Acton was an unlikely opponent of the doctrine of papal infallibility, which was then seen as an integral element of the faith.

But a profound disquiet at the corrupting effects of power led him to originate a political aphorism that has survived the 135 years since he penned it in a letter to an Anglican bishop who had suggested that kings and popes be held to a different standard for their misdeeds than commoners.

“If there is any presumption it is the other way, against the holders of power, increasing as the power increases,” Lord Acton wrote. “Historic responsibility has to make up for the want of legal responsibility.

“Power tends to corrupt, and absolute power corrupts absolutely.

“Great men are almost always bad men, even when they exercise influence and not authority, still more when you superadd the tendency or the certainty of corruption by authority. There is no worse heresy than that the office sanctifies the holder of it.”

And no one had even envisaged the sobriquet “State Daddy” back in 1887.

Acton came to mind last week when I was reading one of the latest judgments of the US Supreme Court. No, it wasn’t the controversial overturning of Roe v Wade that has caused such international anger.

As a result of the abortion judgment, much derision has been hurled at the court, even by President Joe Biden, something he might live to regret. Or, in his current condition, maybe he won’t.

The courts are our protection against authoritarian statism under which the executive arm of government gathers increasing levels and forms of power into its hands.

My interest was in a judgment written by Chief Justice John Roberts in another 6-3 ruling which centred on the dangers of governments assuming powers that have not been expressly bestowed on them by the legislature.

One of the things absent in the worst modern examples of totalitarian regimes — China and Russia — is independent courts. That’s no accident.

Whatever people might think of the decision on Roe v Wade, which revolved around interpretations of the constitution, not laws passed by Congress, the role of the courts in providing protection against abuses of power should never be underplayed.

That is not to say the courts are perfect. For instance, judicial activism and adventurism, where creative judges find implied rights in constitutions, is dangerously problematic.

Recent decisions by the US Supreme Court reveal major fault lines not only within the law, but in the way governments of different persuasions interact with the judiciary.

These days, courts are the final safeguard that citizens have when governments abuse their power or exert powers they don’t legally hold, particularly when parliaments are unable or unwilling to provide protections.

As the 2021 State election in WA dramatically showed, each citizen might not intend to deliver absolute power to certain politicians, but no one can ever be sure that a result caused by the actions of others will not do so in a temporary landslide.

And when governments get absolute power through a crushing majority and have no parliamentary restraints, the only thing standing in the way of potential tyranny is the courts.

Power may well corrupt, but in our favour justice is meant to be blind, meaning it should be impartial and objective and not swayed by the rich and powerful.

The US Supreme Court majority ruling last week that struck down new Environmental Protection Agency rules designed to force power plants to move away from coal and gas and boost solar and wind power is a big blow to Biden’s already-faltering climate change agenda.

But it is equally important because it again put US bureaucrats on notice that the court would uphold any attempts to restrain them from assuming powers not expressly given by the Congress.

In doing so, it highlighted the supremacy of democratically-elected representatives over unelected officials. And that is central to a properly functioning democracy.

The decision is based on the concept that government “must point to clear congressional authorisation for the authority it claims.”

The Biden administration, faced with opposition from several States and private companies to having their power plants shut by EPA decree, could not.

Instead, Roberts writes: “The EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute.”

The decision is reinforced by Roberts recounting a series of recent judgments in which his court has pushed back against increasing bureaucratic over-reach.

The Food and Drug Administration had claimed that its authority over “drugs” and “devices” included the power to regulate, and even ban, tobacco products.

“We rejected that ‘expansive construction of the statute,’ concluding that ‘Congress could not have intended to delegate’ such a sweeping and consequential authority ‘in so cryptic a fashion’,” Roberts wrote.

In another case, the Centres for Disease Control and Prevention could not, under its authority to adopt measures necessary to prevent the spread of disease, institute a nationwide moratorium on property evictions in response to the COVID-19 pandemic.

“We found the statute’s language a ‘wafer-thin reed’ on which to rest such a measure, given ‘the sheer scope of the CDC’s claimed authority,’ its ‘unprecedented’ nature, and the fact that Congress had failed to extend the moratorium after previously having done so,” Roberts found.

And he showed the EPA has form in over-reaching: “Our decision in Utility Air addressed another question regarding EPA’s authority — namely, whether EPA could construe the term ‘air pollutant,’ in a specific provision of the Clean Air Act, to cover greenhouse gases.

“Despite its textual plausibility, we noted that the Agency’s interpretation would have given it permitting authority over millions of small sources, such as hotels and office buildings, that had never before been subject to such requirements.

“We declined to uphold EPA’s claim of ‘unheralded’ regulatory power over a significant portion of the American economy.

“In Gonzales v. Oregon, we confronted the Attorney General’s assertion that he could rescind the license of any physician who prescribed a controlled substance for assisted suicide, even in a State where such action was legal.

“The Attorney General argued that this came within his statutory power to revoke licenses where he found them ‘inconsistent with the public interest.’ We considered the idea that Congress gave [him] such broad and unusual authority through an implicit delegation . . . not sustainable.”

Roberts rounded up his argument on this point, quoting from previous court decisions: “Extraordinary grants of regulatory authority are rarely accomplished through ‘modest words,’ ‘vague terms,’ or ‘subtle device[s].’

“Nor does Congress typically use oblique or elliptical language to empower an agency to make a ‘radical or fundamental change’ to a statutory scheme.

“Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line’.”

Roberts also took on the three dissenting judges: “The dissent attempts to fit the analysis in these cases within routine statutory interpretation, but the bottom line — a requirement of “clear congressional authorisation” — confirms that the approach under the major questions doctrine is distinct.”

This newly expressed doctrine took hold, according to Roberts, to address a particular and recurring problem: “Agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”

But the three dissenting judges — in an opinion by Obama-appointed associate justice Elena Kagan even longer than Roberts’ decision — reject that doctrine, saying it is a conservative invention to “prevent agencies from doing important work.”

The schism in the court is obviously deep, inflamed, and will be long-lived.

It is Machiavellian to assert that the end justifies the means. The message from Roberts is clear. If the executive wants to act, it must have clear and precise authority from the legislature.

Like Acton, we should kick back against what we know is wrong.

Relying on the presumption of extended powers or implied rights, like Australia does — ridiculously and precariously — for things as important as free speech is not sufficient.

For people who really believe in democracy, it is not a matter of cherry-picking outcomes that fit their political preferences and shrugging off whether the process is lawful and fair.

Politicians seeking to form a government need to seek a mandate from the public by taking their important policies to elections. They then need to get explicit legislation passed in an open and transparent manner.

And our courts need to be able to scrutinise such laws to ensure they are fit for purpose and that a government’s legitimate and constitutional powers are not being abused.

In doing so, courts are also not above criticism, particularly when their decisions are split.

But that needs to be tempered by an understanding of their critical role in maintaining our democracies.