Generally, partisans of a particular view and ideologues with an axe to grind are happy only when their beliefs are validated by Supreme Court decisions they agree with. They like to think of the Court as a super legislature that will reverse legislation coming out of Congress they don’t like. Should the court reflect the view of the majority? Does the legislature even reflect that? How can unelected judges reflect the will of the majority when one party wins control by a system that doesn’t even support the majority? Does “habitual recourse to the Court on constitutional matters encourage the elected branches to shirk their own obligations to heed constitutional limits?”**
In the past twenty years, one party has appointed six of the last ten justices even though that party lost the popular vote in six of the last seven elections. That has Democrats and some constitutional scholars up-in-arms.
The right of the court to review the constitutionality of congressional acts has been long established since 1803 in Marbury v Madison, a power that is nowhere in the Constitution. That power has been only intermittently challenged, although Alexander Bickel, in his book, The Least Dangerous Branch, in titular homage to Alexander Hamilton, argued that the structure of the court made it counter-majoritarian by nature. (Hamilton had written "in a government in which the different departments of power are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”
Bickel argued that the court Marshall and Hamilton were wrong. Hamilton and Marshall derived the judicial duty from the concept of the Constitution as the "supreme law" and the duty of the courts as legal interpreters, Bickel perceived no such compulsion. The justification that he deemed to be essential, and in terms of which he supports and would shape the judicial process, is the need in a democracy for an agency empowered to endorse or to reject measures of the representative branches as compatible or incompatible with principle, legitimating or condemning governmental action on the basis of a principled decision of the sort that politics alone cannot provide. That contradiction lies at the heart of the debate on the politicization of the court today, and those in the majority who fear a counter-majoritarian tyranny have proposed numerous suggestions.
Packing
Every president wants a court that will promote his agenda. The Federalists under Adams packed the judiciary, Jefferson changed to size of the court in an effort to manipulate it and even eliminated several federal courts, Jackson, on his last day in office, added two justices, Lincoln added a justice to “reform” it and overcome Taney, and Roosevelt famously tried. Ultimately, he succeeded in his efforts by having two justices change their positions. Size has changed 7 times.
This is certainly an option for the Democrats, although as one observer remarked, what’s good for the goose becomes good for the gander, and there would be nothing to stop future Congresses from adding even more to again tip the scales. As even Senator Bernie Sanders has conceded, court-packing would produce political whiplash. “Packing the courts is a great idea when you’re in power,” he said. “Not such a great idea when your political opponents are in power.” It is concerning, though, that the current court is so counter-majoritarian. The GOP has “represented a majority of Americans in the Senate only between 1997 and 1998 (if you count half of each state’s population for each senator). Maybe the justices should be forced to ride circuit again as they did originally.
Constitutional Court
Another interesting proposal would create a special court (this is all possible under the Constitution) to be comprised of 8 (to prevent narrow majorities) justices. “This court would be made up of judges from other federal courts, selected by the president from a slate generated by a bipartisan commission to create legitimacy and balance. The judges would serve limited terms, then return to their previous courts. Staggered terms would guarantee each president several appointments.” This is not a novel idea. Constitutional Courts exist in France, Germany, and Great Britain, among others.
This would be an alternative to “packing” and term limits that would require a constitutional amendment.
Certiorari
An interesting idea I tend to favor would be to have Congress redefine certiorari. The way the court decides to hear a case now is for four justices to agree to hear it. Justices often will suggest that if only a case were such and such, then they would be able to rule. That to me, is not calling “balls and strikes”, it’s deciding who comes to the plate. The court couldn’t always do this. Until the Judiciary Act of 1925 the court had to review every case that litigants appealed. Only with this act did the court begin to exercise vast discretion over its docket. Congress granted this power, and Congress take it away. It would be replaced by allowing randomly selected panels of appellate judges to select cases .— would restrain judicial activism by taking the Supreme Court out of the driver’s seat. While the court may still have self-aggrandizing incentives, it could no longer direct the progression of the law because another body would decide which cases it hears.
To the above suggestions, I would add a couple more. The court has become increasingly antagonistic toward experts especially in the area of regulation. In the past there was a deference to regulatory bodies who had been charged by Congress with creating regulations to enforce legislation. The Court had traditionally leaned toward them . This was called Chevron deference after a 1984 case. In Chevron, the Supreme Court set forth a legal test as to when the court should defer to the agency’s answer or interpretation, holding that such judicial deference is appropriate where the agency’s answer was not unreasonable, so long as the Congress had not spoken directly to the precise issue at question. Congress could make this deference far more explicit.
Secondly, the Court currently had no ethical rules regarding recusal. It’s simply up to each justice to decide if they have a conflict of interest. Scalia, in particular, was notorious for arguing he could always be fair and the fact he might have gone duck hunting at an appellant's ranch would not sway his decision. Congress needs to make those rules explicit, or at least apply the Courts’s rules for lower courts to themselves.
It’s ironic that pleas for “judicial restraint” came from progressives who saw their programs and the 14th Amendment left in tatters by a pro-business conservative courts beginning in the late 19th century and continuing until the New Deal. Many were even discouraged by Brown v Board of Education as the Court anticipated the legislature rather than followed it. They saw that as a continuation of judicial activism even though they agreed with the result. The abandonment of restraint in favor of activism, all the while decrying it, was Scalia’s constant denigration of legislative history and intent. The current conservatives have totally abandoned favoring the legislature in their wild charge to implement an agenda.
A final quote from Bickel: "...society, certainly not a large and heterogeneous one, can fail in time to explode if it is deprived of the arts of compromise, if it knows no ways of muddling through. No good society can be un-principled; and no viable society can be principle-ridden"
Ideas for this essay are drawn from a series on “Fixing the Court” in the New York Times.
No comments:
Post a Comment