The Court’s Haphazard Reasoning on the Separation of Powers

The Supreme Court in recent years has taken a sharp and decisive turn toward originalism in cases touching on individual rights. Say what you will about the Court’s originalism in individual-rights cases (and there’s much to say), at least it’s an approach. We can’t even say that much about the Court’s treatment of cases touching on the separation of powers. In short, the Court’s separation-of-powers opinions are a mess. They lack any consistent methodology or any coherent theory across cases. If five or six justices agree on the result in any given case, it seems, the explanation and reasoning are just back-fill. This is no way to establish new doctrines that effect seismic shifts in the separation of powers, as the Court has done in recent Terms. This essay first explores three pathbreaking cases from recent Terms that forge new separation-of-powers doctrines. I argue that the Court’s methodology in these cases is incomplete, inconsistent, and incoherent. The essay next offers some preliminary thoughts about how the Court might adopt a better framework for assessing separation-of-powers cases. I argue that the Court should consider well-recognized tools for constitutional interpretation and construction, and certain time-tested separation-of-powers principles and values. This approach could change the bottom-line result in some cases. More importantly, this approach would enhance the Court’s reasoning, and thereby enhance its legitimacy and the legitimacy of our government institutions.