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September 15, 2005

Article III and Judicial Supremacy II: Is Judicial Supremacy Desirable?

In my previous post,   I discussed the question of judicial review versus judicial supremacy.  The reason I bring this up is to address the arguments that John Roberts made as a lawyer for the Reagan Administration,  defending the constitutionality of a proposal to strip the court of its jurisdiction to hear desegregation cases.   It is, first of all, important to distinguish between policy and constitutional questions here.  Obviously, I think that this proposal is awful public policy, I trust most of you do too, and if you don't I'm not going to be able to convince you.   Having disposed of the easy question, let's move on to the more interesting question: is limiting or stripping jurisdiction from the courts constitutional? 

The basis for the constitutionality of jurisdiction-stripping is actually quite strong.   Article III, after giving Congress the discretion to set up appellate courts,  says that "the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."  This language is quite unequivocal,  and Congress has used these powers before.   Lest you think this is a "conservative issue," the most recent use was in the Norris-LaGuardia Act, probably the most strongly pro-labor legislation ever passed by Congress.   The fact that Congress ha s  great discretion over the lower federal courts creates a real puzzle for both opponents of jurisdiction-stripping and supporters of judicial supremacy--given that  Congress doesn't have to create courts at all, it seems  implausible that it could be unconstitutional to merely remove or limit a court's jurisdiction.

There is, however, a serious argument that jurisdiction-stripping is unconstitutional, which brings us back to our previous discussion.  The argument is that jurisdiction-stripping  creates a right without a remedy: rights declared by the court must inherently be judicially enforceable.    I think, at least insofar as constitutional rights are concerned, this argument is probably right--if you accept the premise of judicial supremacy.  (This also has the bonus of preserving Norris-LaGaurdia, which involved equity powers established by Congress.)   If you don't, however, then I think Congress clearly  has this power.  Under the logic of Marbury,  the courts cannot apply unconstitutional legislation, but courts have no inherent right to pass judgment on the legislation beyond that.   So the argument boils down to whether you accept judicial supremacy in constitutional interpretation.

I don't have any big punchline here; as I said before, I don't have a strong view, for a few reasons.  (Good starting points for a stronger argument would be Larry Kramer's Popular Constitutionalism and Judicial Review or  Mark Tushnet's Taking the Constitution Away From the Courts.)   First,  as iocaste says in the comments to the previous thread, there is a difficult conceptual problem that arises if there's no way of  resolving constitutional conflicts (although the puzzle remains if the courts remain unchecked too.)   Second,  I think it's unlikely that judicial supremacy is  going away, and certainly  judicial review won't, so the argument on some level is a parlor game.  Third, while I don't agree with everything in Tushnet's book I think there's some truth to his claim that judicial nullification of legislative acts in the long run is "noise around zero," generating essentially random differences from other political institutions, some better, some worse.  (More specifically,  from my perspective I think  judicial supremacy can be expected to be better for civil liberties and worse for economic policy and federal power.  If you're a left-communitarian, judicial review is pretty much lose-lose for you.)   My main concern, however, is that progressives not evaluate the merits of limiting the court's power through the lens of any individual case.  Hence, a few points for progressives to keep in mind:

Democracy is not at stake in discussions about judicial review.   
The answer to the question of whether judicial review is necessary for liberal democratic government is a clear, unequivocal "no."  Are the U.K., pre-1982 Canada or Australia less democratic than the United States?  I  sure don't see it; if anything,  in the same time period their human rights records are  better.   It's worth remembering that the American South remained largely composed of apartheid police states for nearly a century after the Civil War, despite judicial review and a Constitution that guaranteed due process, equal protection, and voting rights.  Ultimately, if a society is not committed to democracy, judicial review won't stop the tide; if they are, judicial review is not necessary.

Earl Warren is dead.   
It's worth remembering that the 5-liberal-votes majority of the Warren Court lasted from 1963-8, and also happened to coincide with arguably the most progressive legislative period in our history.  Liberals have a tendency to regard this highly anomalous court as if it was typical.   But, in fact, the Supreme Court has generally not been a progressive institution, and it won't be again in the near future either.   And on a related point:

The Court is not a reliable defender of powerless minorities.   
I don't mean to pick on Armando again, but his claim that '[t]he Supreme Court of the United States has been the bulwark of the defense of citizens against the abuse of government"  is quite problematic.   Yes, there are some major exceptions:  church and state, Brown, Roe, some of its criminal justice decisions (and, again, most of these came during a few years.)  But you also--to pick a few obvious examples from many--have Dred Scott (African-American citizens cannot be citizens of the United States),  The Civil Rights Cases (greasing the skids for Jim Crow by striking down the Civil Rights Act of 1875),   Hammer v. Dagenhart (striking down a federal law banning the interstate shipment of goods made with child labor),  Debs v. US (upholds the conviction of a labor leader given a long jail term for making a speech during WWI),  Korematsu v. US (or, as Michelle Malkin calls it , "porn"), McCleskey v. Kemp (the death penalty is constitutional in application despite clear evidence of racial bias in sentencing), and on and on and on.  The Court did nothing about the Alien and Sedition Acts,  upheld the Fugitive Slave Act and segregation while striking down Reconstruction civil rights acts,  did nothing about free speech violations during WWI,  struck down lots of progressive economic regulation, did nothing about female disenfranchisement, and did little about the abuses of McCarthyism until McCarthy had been discredited.   And then we have the comparative problem:  if you have any evidence that the United States has a better human rights record than similar countries that don't have judicial review, I'd like to see it. 

What I want to stress, then, is that in thinking about the Court and potential constraints on the Court's power is that progressives should not conflate the effects of judicial supremacy with judicial decisions you like.   Supporting judicial supremacy does make it easier to protect Roe v. Wade.   But is also means that you have to reject Lincoln's argument that while Dred Scott was binding on the litigants, it should not be accepted as right when Congress was voting on legislation.   Now, it could be that my implication that the Court, in the long run of American history has been more conservative than the other political branches, although I'm pretty skeptical.  More plausibly, it could be argued that given established doctrines the Court is likely to be more progressive in the future than in the past; obviously, nobody knows.  I'm certainly open to the claim that judicial supremacy is a good thing,  or that my general support for legislative overrides is misguided, of that my claim that there is a strong constitutional basis for Article III jurisdiction-stripping is incorrect..   But I do think that proponents of judicial supremacy need to stop making inflated claims about what judicial power can accomplish and to asses the totality of the Court's history.

(Cross-posted at Lawyers, Guns and Money).


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Why, then, did the framers bother to create a Supreme Court with appellate jurisdiction that exists only at the sufferance of the Congress? Was it really only intended to be a glorified trial court for a limited range of controversies? And in what fora are jury trials for federal crimes supposed to take place? What's the point of the right if Congress can simply abolish the federal trial courts? Why have a federal judicial power at all? Did the framers make a drafting mistake? What do you suppose was their thinking on this? The pro-jurisdiction-stripping argument seems perfectly nonsensical to me. Please help me to understand why it isn't, if it isn't.

You're a braver man than I in introducing these Tushnet-y ideas here.

I think, though, that you're overly harsh on this statement: "The Supreme Court of the United States has been the bulwark of the defense of citizens against the abuse of government." Armando's absolutely right, and it's not just a temporal, now-dead phenomenon. It's a structural feature of the system. Here's why:

For the sake of a simplified example, imagine a government with judicial review and supremacy, an adversarial system with limited standing, policy made by legislation, and a constitution that could be interpreted as creating limitations on government. These are two hypothetical situations where the legislature and judiciary have different values for their perceived amount of power granted to the government:

Scenario 1:
Judicial interpretation of power granted to Congress is X.
Congress's interpretation is X + 1.
Maximum policy outcome is X.

Scenario 2:
Judicial interpretation of power granted to Congress is Y.
Congress's interpretation is Y - 1.
Maximum policy outcome is Y - 1.

In the specific situations, the policy-setting branch isn't determined by supremacy, but by whose reading of the bounds of congressional power is most restrictive. So, yes, judicial supremacy does inherently curb government abuse because it inherently curbs all government action. To be a little crass, think of judicial supremacy as chemo - it poisons the bad stuff by poisoning everything and hoping the bad stuff dies first.

The problem, of course, is that that means it also inherently curbs government aid. How one balances those two features has everything to do with one's concept of the role of the state.

I think you're right, by the way, about the strong constitutional case for jurisdiction-stripping. I tend to lean towards the existence of jurisdiction-stripping as a good policy feature as well. The reason jurisdiction-stripping measures aren't more politically successful is that they seem lawless to the public - but they'll only seem lawless as long as the public has some baseline respect for the courts. It creates a nice, sort of muffled democratic control for the judiciary, where they aren't bound to execute majoritarian policy preferences, but can't risk pissing people off too terribly much.

Donna--the argument is only unusual if you take judicial review for granted. If you see things in terms of legislative sovereignty, it makes prefect sense.

In addition, while "afterthought" would be too strong, Section III is highly vague, and essentially left the details to be filled in by future generations. Judicial supremacy is one, but only one, way of filling in the gaps.

I'd also point out that while giving overriding interpretive powers to Congress may seem attractive and intriguing when we talk about the exciting constitutional topics we're used to, it seems like it'd be pretty disastrous on a lot of other ones. The constitution contains a lot of our basic rules for governing, and it seems like it'd be awful for these to be vulnerable to being amended by an unchecked legislative "interpretation." I don't think it should be possible for a statute to give Texas eight Senators, or George Bush a third term, or 18-20-year-olds no right to vote. That's not a progressive or conservative value, it's the basic value of government functioning.

"Armando's absolutely right, and it's not just a temporal, now-dead phenomenon. It's a structural feature of the system."

Accepting your argument on its own terms (which I think are quite different than what Armando means), it's quite clearly wrong. There's no way judicial review has prevented as many "abuses" as bicameralism, or the filibuster, or the committee system, or the executive veto.

In terms of your other argument, well, Canada has an override and a more centralized legislature, so why doesn't the government just ignore the constitution willy-nilly? You can use implausible hypotheticals to defeat any constitutional arrangement, but they don't mean much unless there's any significant chance they would occur in pactice. (One could just as easily say, "given judicial supremacy, what's to stop judges from striking down every bill passed by Congress using the Ninth Amendment?")

I don't know if the data would bear you out on the filibuster. Also, the problem with all those mechanisms is that while they make it difficult to pass legislation, they make it at least equally as difficult to repeal legislation, which isn't the case with judicial review. It'd be impossible to empirically state which had prevented the most abuses even if we could agree on a definition for abuse, because it's impossible to know what policies would have existed in the absence of a specific mechanism. So, in that sense, the "bulwark" aspect is, as I'll admit overreaching. But any assertion that the abuse-curbing nature of judicial review was just some fluke of the Warren era is also reductive and incorrect.

Given judicial supremacy, what's to stop judges from striking down every bill passed by Congress? You and I have both noted jurisdiction-stripping. There's also the fact that the judiciary has essentially no method for enforcing its own rulings, while the legislature and the executive have the purse and the administrative state, respectively - not to mention the military. There's also the fact that the judiciary gains its perceived legitimacy from adherence to the law, so unjustifiable departures from its terms are directly, seriously harmful to its role in the political system, while adherence to law is, at best, only a part of the perceived legitimacy of Congress, which gains most of its perceived legitimacy from an appearance of popular accountability. There's also the fact that Senators confirm Justices but Justices don't confirm Senators.

"It works elsewhere" is rarely a sufficient reason for a radical departure here, especially since our legal system has evolved to function in a specific manner that your proposed model would completely disregard - unless you're advocating some sort of bizarre Canadian sibling to modernization theory, where all roads lead to the Great White North. Canada's political and constitutional structure and history are decidedly different from ours. I'm not a Canadian historian or legal scholar, so feel free to enlighten me as to why you think it'd be a grand idea to throw away our entire system of constitutional adjudication because Canada has used an alternate system without devolving into anarchy.

It was just a few months ago that we had the big filibuster brouhaha, which seems like it ought to at least have settled the basic proposition that American congressional majorities probably shouldn't be trusted to follow rules that are unenforceable against them. Maybe other nations' legislatures are better at governing by Gentleman's Agreement. Bully for them. I don't see it as feasible here. Why do you?

Incidentally, of the six judicial failures to protect minorities you list, half of them were just the judiciary not invalidating the actions of other government entities. That's exactly the outcome you're advocating, though, right? I can't think of a more nonsensical argument than "We should give definitive power of constitutional interpretation to the legislature because of the judiciary's terrible moral failures in Debs."

Donna--the argument is only unusual if you take judicial review for granted.

I'm not talking about about judicial review of the constitutionality of legislaticve enactments. I'm talking about simple adjudication of controversies arsing under federal law. The court-strippers seem to think we can have federal law without any means of resolving the inevitable disputes among affected parties. If there are no trial courts, and the Congress decides to except everything from the Supreme Court's appellate jurisdiction, then the federal judicial power is a joke. I cannot believe that this was the framers' actual intent.

It's not just Canada--judicial review among liberal democracies is a relatively recent phenomenon. And, again, if judicial review is such a powerful progressive force, how can you explain the persistence of black disenfranchisement? I don't see how restricting (not eliminating) the power of the courts could devastate the system when its net effects historically have been negative. (In terms of your argument about Debs, my argument is not that the courts shouldn't strike down such legsislation. I'm saying that you can't trust them to.) In terms of the flibuster brouhaha, are you arguing that the courts would intervene to stop the nuclear option? If so, I think you're quite seriously misguided. *All* constitutional systems rely on "gentleman's agreements" to stop egregious abuse; judicial review, at best, may help at the margins, but that's it.

Finally, in terms of your argument that the courts are restricted because they have to do things that are legally plasuible lest they damage their fragile legitimacy, yes, I can only imagine what would happen if the courts used transparently ludicrous and bad faith legal reasoning to end a presidential election. Obviously, they would permanently lose their power! Oh wait...

In terms of the flibuster brouhaha, are you arguing that the courts would intervene to stop the nuclear option? If so, I think you're quite seriously misguided.

Well, good, because that's nowhere near what I'm saying, so I guess I'm not. What I'm saying is that, in our political system, congressional majorities can't be trusted to follow rules that aren't enforceable against them when those rules become inconvenient. In fact, that's exactly what I typed the first time. The Senate rules for rule changes aren't something that can be vindicated in a court. But under your model, absolutely none of the rules for the composition and behavior of the legislature could be vindicated in court.

In terms of your argument about Debs, my argument is not that the courts shouldn't strike down such legsislation. I'm saying that you can't trust them to.

It sound to me like the anti-lock brakes have failed, and your plan is to unbuckle your seat belt and assume that the oncoming wall will protect you. Of course the court won't strike down every single bad law that comes before it. In fact, if you'd like a trophy forwarded to your address congratulating you on defeating anyone who asserted "Courts can be trusted to overturn every bad law and order the cessation of every bad government act that comes before them," I'll take up a collection and see what I can do. But the court has struck down a number of bad laws or practices, including many in the Rehnquist era.

Besides, the problem with Tushnet's argument and yours is that you focus exclusively on what the court overturns and ignore what would be legislated if there was no threat of binding judicial review. The best, most effective constitutional doctrines don't come before the court at all, because other government actors know they can't win. Can you imagine an establishment clause legisprudence unbound by judicial review? It wouldn't just be statues on courthouse lawns.

It's not just Canada--judicial review among liberal democracies is a relatively recent phenomenon. And, again, if judicial review is such a powerful progressive force, how can you explain the persistence of black disenfranchisement?

If legislative power is such a powerful progressive force, how do you explain the persistence of coughs, colds, and the flu? The court aren't gods, they aren't perfect, and - surprise, surprise - they don't just work for one side of the political spectrum. Once again, I don't see how this argument at all justifies divesting the court of what power it does have.

I don't see how restricting (not eliminating) the power of the courts could devastate the system when its net effects historically have been negative.

As far as I can tell, your version of "restricting (not eliminating)" judicial review involves reducing it to polite memos telling Congress the court's opinion, and asking if, maybe, they could consider it, if it's not too much trouble. I also don't get where you get this historical net negative effects argument. As I said before, you can't possibly know the total net effects, because you don't know how Congress would have legislated in the absence of binding judicial review. Even if we agree to use your flawed methodology and look only at cases where judicial review was actually exercised, I don't think you're right. The court has overturned some good legislation, which would be a net negative. The court has chosen not to overturn some bad legislation, which would be a net zero. Why is it so quantitatively clear that these cases outweigh every bad policy the court has struck down - forced sterilization, criminalized birth control, criminalized abortion, criminalized sodomy, state constitutional terms clearly designed to disenfranchise homosexuals, the death penalty for minors, the death penalty for the mentally handicapped, any number of instances of a lack of procedural due process, endorsement of religious ideals in public schools, to name a few. You like to harp on about the fact that most of the court's "good" cases were over the course of "a few years." Yet so much of your doomsaying is based on cases that occurred over a few bursts during Reconstruction and the Lochner era. Has the court struck down some decent laws since then? Sure, but it's been significantly more modest. And besides, the idea that the court should be divested of its power if it turns out that it doesn't exclusively serve progressive values is just ludicrous. No government entity is structurally incapable of serving conservative values. Sorry.

I find it odd that you've spent so much time carrying the torch and leading the mob to find anyone who dared suggest that overturning Roe wouldn't be the worst thing in the world - and now, two days later, you're at least "agnostic" over a radical change that would undoubtedly mean the immediate overturning of it tomorrow - and, in fact, the immediate overturning of the majority of progressive precedents we've assembled over the years. I realize Kramer and Tushnet are fashionable now, but fashion doesn't seem like enough to justify this.

close ital, my mistake


Eli, I'll won't presume to step in and respond for Scott, but I think it should be noted that you've shifted the terms of this debate a great deal, and in a way that isn't justified by what Scott wrote. You've characterized his post as a brief for a significant revision of the role of the federal judiciary in our political system, and it's quite clearly nothing of the sort. He's not taking a position here, just saying that a number of standard arguments for one side aren't particularly persuasive.

djw: On the statement that a number of the standard arguments aren't persuasive, I agree with him completely. I'm no advocate of judge worship. But his post certainly is a brief for being "agnostic" on a significant revision of the role of the federal judiciary in our political system. I don't think that agnosticism is justified.

"I find it odd that you've spent so much time carrying the torch and leading the mob to find anyone who dared suggest that overturning Roe wouldn't be the worst thing in the world - and now, two days later, you're at least "agnostic" over a radical change that would undoubtedly mean the immediate overturning of it tomorrow - and, in fact, the immediate overturning of the majority of progressive precedents we've assembled over the years."

But, of course, there's no contradiction here. Nowhere have I argued that *every excerise* of judicial review has been a net negative. Obviously overturning Roe would be very bad. This tells us nothing about the net effects of limiting the power of judicial review. (And given that judicial supremacy in its current form didn;t exist until the 50s, and that the exceptions and regulations clause was part of the Constitution from the begniing, your claim that any such limits on the power of courts would be a "radical change" is obviously wrong. The supermajority override that I advocate would be *less* radical than the jurisdiction-stripping the Constitution already permits.)

With respect to cases where the judiciary doesn't do anything, you continue to miss the point of my argument, which is that your persistent claim that the judiciary is the thin reed preventing the American government from becoming a lawless dictatorship is silly. And while you (indefensibly) insist that we have to make an a priori decision to ignore all the comparative evidence, I continue to insist that it's crucial. The only way of assessing the effects of judicial review is to compare the U.S. with similar countires that don't have it, and when you do do this you simply won't reach the conclusion that judicial review makes a significant difference in protecting minority rights. (And while there are differences, of course, the MAdisionian insitutions of the United States make it *less* prone to "abuse" than PArliamentary systems.) And while your argument about latent conflicts is true, it gets you nowhere because it cuts both ways; anticipating what the courts will do can inhibit good legislation as well as bad, and moreover creates additional opportunities for blame-shifting. (Also, if you actually examined how overrides work in practice, you would see that your claim that judicial review in such systems represents nothing more than a "polite letter" is utterly wrong.)

With respect to the evaluation of judicial review historiaclly, I agree that it's impossible to know for sure, because there's no way of agreeing to a metric. (WHich is one reason why the compartive evidence you tendentiously dismiss is so important.) IF you want to argue that judicial review has been a net benefit, maybe you're right; I doubt it, but I can't prove it. But I certainly stand by my claim that it doesn't make a huge difference either way.

Finally, djw already said it but your attempts to attribute everything Tushnet and Kramer argue to me when I specifically say that I'm not endorsing their arguments in toto is highly problematic. I have many differences with them--starting with the fact that I'm not a "populist"--and I'm agnostic about judicial supremacy. What I am against is naive, simplistic claims about judicial review that ignore how constitutional systems actually work.

Unless I'm misunderstanding the whole argument, I don't know how this topic can be discussed without mentioning Employment Division v. Smith and the Religious Freedom Restoration Act (RFRA). In addition to RFRA trying to establish a new interpretation of the Free Exercise clause, didn't the Oregon legislature create an exemption for religious drug users after the Supreme Court decided the case? RFRA and the exemption are both examples of a legislature being more concerned with an individual's rights than the courts. And RFRA seems to be an example of a challenge to judicial supremacy that the court smacked right back down.

Of course overrides can work different ways, and a supermajority override would be more defensible, less dangerous, and less destabilizing than a majority override. If it were at all defensible and possible to somehow shoehorn one into our system, I'd be willing to entertain it.

The problem is that there is absolutely no legal basis for such a practice in the American system. Congress doesn't have the power the suddenly discover new supermajority powers. How would your system come into existence? If it's a constitutional amendment, OK. But there's no other mechanism that would provide for it.

Comparative evidence is of course useful. Unfortunately, while it might give us some imperfect glimpse at what might theoretically have worked for us if we could go back and start things over, it's extremely inconclusive as to what we could plausibly transition to now within our legal framework. As I point out above, while you may be able to make a highly questionable case for the assertion that judicial supremacy hasn't been a feature of our system for incredibly long (though I'd point out that you yourself have given examples that are over 50 years old), that doesn't change the fact that there is absolutely no historical or legal basis for a supermajority override power in the American constitutional system. There's no supermajority qualifier to the exceptions and regulations clause. So your attempt to hide behind the skirt of supermajoritarian overrides just doesn't work. Here, it's either a constitutional amendment or majoritarian override power a la the RFRA or neither.

I think maybe the crux of our issue is here:

With respect to cases where the judiciary doesn't do anything, you continue to miss the point of my argument, which is that your persistent claim that the judiciary is the thin reed preventing the American government from becoming a lawless dictatorship is silly.

I not only haven't made that argument persistently, I haven't made it at all. You're arguing, here, against some people you directed this post at, not against me. The argument I made is 1) that judicial supremacy is, in fact, inherently limiting structurally, and wasn't simply coincidentally limiting under the Warren court, 2) that a simple majoritarian veto power would be dangerous, and 3) that there's no legal basis for a supermajoritarian override in the American constitutional system. I don't see how that's naive or simplistic. I agree with you that the court's power and moral standing are regularly overstated by many progressives. And I agree that the judiciary's input into policymaking is less than people have believed. And to the extent that your point is that, theoretically, a supermajority override power for constitutional precedent might or might not be nifty - well, I agree with you there. It might, but it's moot.

I don't know... I find that the U.K. does some pretty scary things on civil rights that don't encounter that much opposition, compared to, say, the U.S. ASBO (anti-social behavior orders) and their libel laws come to mind. I'm also not a big fan of Canada's hate-speech legislation.

This isn't to say the U.S. doesn't also have civil rights abuses, but here, at least it seems like such infringements face significant obstacles, in the courts and in popular opinion.

"I not only haven't made that argument persistently, I haven't made it at all."

Well, for example, you suggested that:

"I don't think it should be possible for a statute to give Texas eight Senators, or George Bush a third term, or 18-20-year-olds no right to vote."

It strikes me that giving George Bush a third term would be a rather powerful blow to democracy, and yet you suggest that without judicial supremacy this would be a serious risk. But, of course, 1)that's not going to happen, and 2)in a context in which that could happen, the courts wouldn't be able to do anything about it. And these hypotheticals are obviously intended to add to an argument that a reduction in the power of the courts would have "radical" consequences, an argument for which you've provided no actual evidence. Once you've conceded that 1)in many cases, including extremely important polcies that flagrantly violate the Constitution, courts have done absolutely nothing, and 2)when courts do act aggresively the consequences are often bad, it is hard indeed to sustain that claim. An argument that there's a marginal benefit is tenable, but that's it. (In fairness, you do concede the fundamental weakness of courts vis a vis the other branches in places, but do not seem aware that this renders many of your other arguments inoperative.)

As for your argument that a legislative override requires a consitituional amendment, I'm perfectly well aware of that. Please refer to the part of my argument where I said that "I think it's unlikely that judicial supremacy is going away, and certainly judicial review won't, so the argument on some level is a parlor game." I don't think an override will ever actually happen. My point is that *if we did so* the changes would simply not be as major as you suggest, and it's entriely possible that the change would be positive.

For me the core of the argument is your dismassal of deep-rooted norms as mere "gentlemen's agreements" or whatever. I couldn't disagree more; these norms are the absoulte core of constitutionalism. The Soviet Union had a constitution spelling out a panapoly of individual rights in detail; the U.K. doesn't have a written constitution at all. WIthout norms, a constitution is just paper; if the branch of the state that controls the guns and the money is determined not to adhere to a constitution, courts are beside the point. Perhaps judicial review can marginally constrain the state--but that's it.

The disagreement seems to hinge a lot on the definitions of "radical" and "marginal." This is why I find your discussion here so hard to reconcile with your doomsaying on a potential Roe reversal. You've made abundantly clear 1) that you think Roe being overruled would be a huge deal and 2) that you don't think it's a foregone conclusion that it will be. I actually disagree as a matter of slight degree on the first and as a matter of untestable prediction on the second. But certainly a legislative override power that would require just a simple majority - as could have been implicit in the contrarian position in Boerne, about which you're "agnostic" - would almost certainly result in Roe being overturned. I don't view that result as either marginal or particularly radical, yet you seem to view it as paradoxically both. Or, at the very least, you think that the change would result in the preservation of some policy so extraordinarily important that it would counterbalance the Roe loss and create some kind of net marginality, which I don't think is an even intelligible concept. Yet you've also stated that you don't think the court is poised to go much further with its Commerce Clause restrictions. Honestly, I can't for the life of me see how this all reconciles.

I've actually already discussed how the court's fundamental weakness vis a vis the other branches doesn't undercut my arguments. The court's power is proportional to the political cost of disobeying it, which constrains it in its holdings greatly (preventing a lot of the bad policy-striking you seem so terribly worried about). However, because it's not directly accountable - only reliant on a more vague sense of respect that makes disobeying it disadvantageous to other government actors, it is able to constrain even popular behavior on at least a limited basis. Congress, however, has absolutely no incentive to constrain popular behavior, including behavior it can make popular through any sort of media barrage, including ones about the appropriate meaning of the constitution.

My original point was that there is an inherent constraining effect when the branch that decides the extent of the power isn't the same branch that decides how fully to fill that extent, so your "Earl Warren is dead" condescension was unfounded. You seem to have largely abandoned that point and admitted that judicial supremacy is constraining in some degree. I'd point out that right up front I stated that it was debatable whether that constraint was good - that the answer to that question came down to some fundamental beliefs about the role of the state.

You've mentioned over and over that you think that when the court constrains it often does it for the worse. OK. That view is totally compatible with my initial point. My secondary point, for which I used the eight senators example, was that many of the instances where the court hasn't had to intervene are ones about basic ground rules. Apparently it didn't quite register that the concept of eight Senators from Texas was hyperbolic. My bad. We differ on how much we trust the legislature to fully police itself without the electoral threat of offending a court with a surplus of desegregation respect to fall back on. Fine. As you pointed out, some nations handle that well and some don't. I don't think we'd handle it as well as you do - though I think, obviously, that I think we handle it marginally well, which is why I haven't advocated an end to jurisdiction-stripping, court control of the National Guard, or a Court composed of wise Canadian elders. That seems like an untestable point of disagreement about the civic spirit and behavior of American politicians. If we disagree on that, I'm not all too sure there's much relevant further discussion. Hooray if you're right - I just don't think you are.

We do agree on your supermajority override parlor game. Cheers on that.

close ital, my mistake

Eli -- or anyone else -- when this happens, please email me or Lindsay. Typepad has made changes that make it impossible for posters to fix this themselves by closing tags in subsequent posts. (Don't ask me why.) You need a blog administrator to edit your post and fix it for you.

I am for preserving the function of the courts as a balance to the Executive and the Legislative branches. It is our tradition to preserve this balance and tension between the branches-- so they can frustrate each other's quest for power. The repubs have lately been propagandizing against the "activist" liberal judges in favor of some kind of legislative curtailment of the court's purview-- a denial of substantive power to this fndamental branch of government.
This would be contrary to our tradition and i would feel mighty threatened by such a move.
Our government , not just our system of laws , is in good measure based upon the
English system of government as it developed after the English civil War, a war which was, substantially, a fight between
an angry and power hungry Parliament
and an arrogant and power hungry King Charles I, over who should rule the purse--- a war which replaced a capriciously cruel reign with the greyly repressive Puritan dictatorship of Cromwell-- until an arrogant
and licentious monarchy was restored, to the general relief of all.
Thereafter, the power of the purse was
solidly Parliament's and the monarchy was drained gradually of its power in favor of a prime minister --and political conflict between Tory and Whig replaced that between parliament (lords and commons)
and the executive monarch-- with greater governmental and social stability the result.
Clearly, the US framers learned from
the English example: achieving stability
requires that the rules about who does what should be settled before hand as specifically as possible and playing the political game should be predicated upon acceptance of the rules and roles and limitations if a society is to avoid the kind of struggle for power that foments a civil war and provides an opening for the victor to establlish and perpetuate tyranny.
It is vital to maintain the Institutionalizing, ritualizing and formalizing of confllict within a framework that not only accomodates conflict but encourages it to play out fully within a limited context where the fundamental roles, unlike those of CharlesI and parliament, are spelled out to begin with. It is vital to formalize the rules and narrow the roles of the game to thereby limit the scope of the inevitable grab for power that the executive or legislative will seek, without discarding the rules altogether--and provoking civil war.
Each framer of the constitution, attempting to protect the power and independence of his colony as far as possible, sought to restrict the other colonies' ability to gain, through federal government machinations, a predominance injurious to his colony's interests. The resulting scheme was structured to limit the accrual of power by any one branch of government over another. By tradition,
the judicial branch can order the Executive and the Legislative to cease measures in conflict with the fundamental rules governing our system of government.
The whole system is founded upon the presumption that the participants will realize it is in their interest to preserve the
fundamental rules rather than allow greed for power to build to such strength that the rules are discarded--- fomenting tyranny and civil war, or rather, fomenting uncivil blood letting instead of the much more civil political war waged within the fundmental bounds of the system established by tradition and the constitution;it is based upon the presumption that civilized men will cherish freedom and stability above power and avoid breeching the limitations built into the structure of the system itself--- limitations so fundamental that to discard them means the systems' destruction.
Our judiciary makes up one limiting boundary of that system.
Augustus Ceasar allowed the form but not the substance of the Roman Senate
as aid to passifying the Senatorial class opposed to his dictatorship.
If the US judiciary is denied substantive power by the repubs it would be for a similarly dictatorial aim--and would constitute the violation by the repubs of the fundamental limitations of our government -- beyond which the legislative may not tread without the structure becoming empty of substance-a shell--- it would signal the triumph of tyranny and would, for those who cherish freedom, be provocation to and justification for civil war.

It is unclear how executive vetos (less than two thousand overall, often special interest or concerned with executive power specificially) or filibusters (unclear how many were useful in this area) is anywhere comparable to every day judicial review.

One considers simple cases of an individual litigant going in front of a judge to have his/her rights upheld. This individual security is particularly valuable.

The strawman that the courts have upheld injustice is just that. I don't know why we should take this seriously. In this scenario, again, the legislature cannot be trusted either.

Also, even in the parade of horribles, invidual exceptions leak thru. Even in slavery days, for instance, Southern courts freed slaves that were taken into free territory. Grandfather laws, aparthid laws (as compared to private restrict covenants), and peonage was all struck down in the Lochner Era. And, many progressive laws were upheld. Likewise, the idea only the Warren Court (you know, Roe v. Wade, Warren wrote the opinion, right?) used judicial review to secure our liberties is simply wrong.

We are also told there are other ways of doing things. Sure, there are many our our institutions (jury trials come to mind ... British law looks upon them with some disfavor) that can be altered w/o tyranny entering the picture.

But, other nations also have had different institutions. Canada law and constitutional thought developed differently. It would be quite different in our case to suddenly change things respecting judicial review.

Finally, yes, there were a few examples of judicial stripping. But, really, significant ones are hard to come by. This is why the SC never expressly had to deal with the issue in the recent era. Even in a case during the Reconstruction, Ex parte McCreadle (sp), the SC noted that there rights to hear an appeal was not totally stripped.

[And, according to a recent CRS report, a New Deal stripping provision that was relatively minor was struck down by some lower courts.]

This is just not a reason to signficantly change a system that we had for two centuries, a century in the more expansive way we currently work under. And, Judge Roberts moves (involving race, thus esp. troubling) are esp. notable.

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