« Constructive Criticism | Main | Shelby Steele Hearts White People » Changing the Rules01 Jul 2008 03:40 pm Several commenters and Scott Lemieux have convinced me that contrary to what I said here it wouldn't require a constitutional amendment to impose some kind of supermajority requirement on Supreme Court decisions. UPDATE: Of course at the end of the day this would need to be litigated. In principle, the Court could vote 5-4 to strike the law down which would create awesome legal paradoxes. Comments (19)
The way to do it (if, indeed, it ought be done) would be to leave the Supreme Court alone at first and target the circuits. Pass a law saying that no U.S. Court of Appeals judgment that strikes down a duly passed federal law as unconstitutional shall have effect unless 2/3 (or whatever) of the judges on that Court concur. Then, when that's litigated up to the Supreme Court, they'll have to go on record about the constitutionality of a super-majority requirement. If they say it's okay, green light the law that applies to the Supreme Court. You've got the constitutional high ground. If not, think of something else. 
Why would anyone want to raise the threshold for declaring laws unconstitutional? As it is, it takes years if not decades to overturn unconstitutional laws. Do you really want it to take generations and centuries instead? Why? If you are angry at this particular court and its decisions, the way to change it is to elect better presidents, who will appoint better justices, who will make better decisions.
In theory there is no difference between theory and practice. In practice, there is. I love that silly quip. Toss it out whenever I get the chance. Thanx.
The vast majority of Courts of Appeals cases that are disposed of on the merits are already decided unanimously or at least by two judges sitting on a three-judge panel.
Matt -- doesn't it suck that your book isn't selling well? I mean, even in the specialized Amazonian lists, it's only 28 or 30. and to pour salt on your wounds, Ross' and Reihan's book is at #1 in each list!!! Guess that you're not quite the insightful commentator you've made yourself out to be. Better get those law school applications out!!
It's really doubtful that a rule requiring 6-3 supermajorities to strike down a law would be found Constitutional by the Court. Sort of like the Court will never abide laws stripping jurisdiction to hear specific types of Constitutional cases. Whether you want to call it Due Process or separation of powers, laws like these just won't fly. There's exactly one way for Congress to require a 2/3 supermajority for the Supreme Court to issue a binding opinion: return the Court to its original size of 6 members as retirements and deaths occur.
I've thought Matt a blowhard for quite a while. I mean -- with all respect to him, it's a little hard to be expert enough to comment in as many areas as he covers. We've already seen his moronic post about Israeli nuclear weapons above (the fact that he doesn't mention these as a conventional deterrent is reason enough to tune him out). But this takes the cake. Not that you have to be a lawyer -- i am -- but it does help immensely. Suffice it to say that Matt knows nothing about how the Court works. Indeed, courts do review legislation -- legislation that is brought to its review through specific cases. And it's pretty much law 101 that if the court doesn't decide a case, then the lower courts' rulings stand, even if contradictory. MY basically has no humility. As least Douthat gives the caveat that he's not exactly qualified to comment on this. Stick to basketball Matt. Although, on 2nd thought, a fat, unathletic Dalton grad should probably not comment on a game played by super-athletic public school grads. Well, stick to putting your nose up Obama's bum. You're doing such a great job of that!
Indeed, courts do review legislation -- legislation that is brought to its review through specific cases./i> And indeed, that misses the point, particularly given the Roberts court's influential reluctance to deal with facial challenges in situations (voter ID, abortion rights) where as-applied challenges are unlikely to provide relief. More original trolls, please. Or at least ones that suck a smaller proportion of their salaries up their noses.
Maybe this belongs in a request thread, but I'll throw it out here: If you're against judicial review, what do you propose in its place? Somebody has to have the power to invalidate unconstitutional laws, right?
I strongly disagree with Lemieux as to the constitutionality of a statute purporting to change the Court's voting rules. The mere fact that nothing in Article III precludes Congress from passing such a law does not mean that authority is vested in the legislative branch; a "core functions" analysis would place authority for determining the Court's internal procedures in the Court's own hands, as would an analogy to Article I, Sec. 5 which grants Congress the power to determine its own rules. (The one power that Article III does grant Congress as concerns the Supreme Court is the power to regulate and make exceptions to its jurisdiction.) It should also be unsurprising that the courts themselves have jealously guarded judicial prerogatives in the separation of powers context, where they have occasionally been unwilling to step in to resolve disputes arising exclusively between Congress and the executive. United States v. Nixon stands for the proposition that executive privilege is not absolute, but in reading the majority and concurring opinions it's obvious that the fact that the President was refusing to comply with a judicial subpoena weighed very heavily against his claim to be legitimately exercising his Article II powers, because defying subpoenas was perceived to strike at the heart of the power of courts to obtain evidence and conduct trials. As for how a constitutional challenge to such a super-majority law would be litigated, that's a really fascinating question. The Court has begun to discourage facial challenges in the last few terms, which might indicate they would want a plaintiff challenging the law to suffer the "concrete and particularized injury" of receiving an adverse judgment from the Court under the new rule where s/he would have prevailed under the old rule. At that point, the disappointed party could file suit challenging the supermajority law in order to have his/her original case submitted to a new decision. Or something. On the other hand, if there was a majority (simple or otherwise) of the Court to declare the supermajority law unconstitutional immediately, would the Court stand for the indignity of operating under the unconstitutional rule until such time as a properly-situated plaintiff could be found? I really have no idea, but it would be an interesting intersection of judicial supremacy and judicial process.
That 'awesome legal paradox' would still have nothing on the fact that judicial review in this country was established via (a controversial case of) judicial review. I realize all of your readers think you're extremely wicked to even think about weakening judicial review, but they should at least admit that the notion that the civics class diagram of checks and balances was a founding principal of our government is a fairy tale. Even if judicial review is a great thing, it simply hasn't always been around, and wasn't the intention of the framers of the constitution; it's not the sort of thing you just forget to write down explicitly. Looking at the current administration, it's pretty easy to see that branches of government granting themselves more power is a bad thing, but somehow, no one seems to mind that the courts did just that. If only the Onion had existed back then: http://www.theonion.com/content/node/51140
That 'awesome legal paradox' would still have nothing on the fact that judicial review in this country was established via (a controversial case of) judicial review. I realize all of your readers think you're extremely wicked to even think about weakening judicial review, but they should at least admit that the notion that the civics class diagram of checks and balances was a founding principal of our government is a fairy tale. Even if judicial review is a great thing, it simply hasn't always been around, and wasn't the intention of the framers of the constitution; it's not the sort of thing you just forget to write down explicitly. Looking at the current administration, it's pretty easy to see that branches of government granting themselves more power is a bad thing, but somehow, no one seems to mind that the courts did just that. If only the Onion had existed back then: http://www.theonion.com/content/node/51140
It makes nonsense out of the entire constitutional process to think that the Framers did not intend for a mechanism to enforce the Constitution's governmental framework. Article III - The Judiciary The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States... Article IV, Clause 2 - Supremacy Clause This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby... If, according to Article IV, all laws must be made in pursuance of the Constitution, then it logically follows that laws which conflict with the Constitution are null. Article III expressly gives judicial power to settle all cases arising under the Constitution and its laws. From that, it logically follows that the judiciary is empowered to determine whether a law complies with Constitutional restrictions or not. If a legislative body can write laws which conflict with the Constitution, and no legal recourse is available to settle the conflict, then there is no sense or force in having a written constitution to begin with. It becomes nothing more than another law, not a "supreme law." But the record shows that the Framers took great pains to distinguish the Constitution as that supreme law, a national framework from which all law would derive. Why bother including a process to amend the Constitution, if the legislative and executive branches can just make law overriding the Constitution? It's nonsensical any which way you look at it. One would surmise that the Framers did not intend to write a document that contained the keys to making itself a nullity.
It's a mistake (though I did it first) to talk about what the framers intended, as if they all intended one thing. It's obvious that they disagreed with each other on a lot of things, including this issue, which was explicitly debated. Some wanted judicial review explicitly in there, others wanted to explicitly curb it. The vague language is a compromise. What to make of that compromise is up to debate. The interpretation in M v. M has won that debate, but it is at best simplistic to say that was what the capital F 'Framers' wanted. (not that what they wanted should matter). "If a legislative body can write laws which conflict with the Constitution, and no legal recourse is available to settle the conflict, then there is no sense or force in having a written constitution to begin with." That's just wrong. Legislators aren't allowed to pass laws that conflict with the constitution, but they do anyway. That could be the end of the line, or you could have our situation, in which judges can overturn them. The judges aren't allowed to make decsions which conflict with the constitution. But they, too, can anyway! The two situations are analagous. Judicial review provides an extra level of decision making, and that level does us good, or it doesn't. But the idea that these two situations are entirely distinct, one where the constitution is irrelevant, is simply a fairy tale.
There is no need to come up with a complicated court packing scheme a la FDR 1937. Simply expand the number of Supreme Court Justices from 9 to 11. There is ample historical precedent for Congress to alter the number of Justices, and expanding the number will of course not affect the tenure of any current Justice.
There is no need to come up with a complicated court packing scheme a la FDR 1937. Simply expand the number of Supreme Court Justices from 9 to 11. There is ample historical precedent for Congress to alter the number of Justices, and expanding the number will of course not affect the tenure of any current Justice.
While most of it is not formally part of the Constitution, THE RULE OF LAW is generally considered binding in this country. The Rule of Law is more than just a noble phrase. Actually it consists of 6 quite specific canons handed down to us from Common Law. Among these is the principle that only each individual branch of government may establish its' own procedures and rules. Hence while changing the number of justices might pass muster, only the court can rule on what constitutes a majority, etc. It was the Rule of Law that was at stake in the Schiavo case.
While most of it is not formally part of the Constitution, THE RULE OF LAW is generally considered binding in this country. The Rule of Law is more than just a noble phrase. Actually it consists of 6 quite specific canons handed down to us from Common Law. Among these is the principle that only each individual branch of government may establish its' own procedures and rules. Hence while changing the number of justices might pass muster, only the court can rule on what constitutes a majority, etc. It was the Rule of Law that was at stake in the Schiavo case.
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Heads in the Sand
which would create awesome legal paradoxes
It might, but getting Congress to raise the court from nine to, say, fifteen and/or have a rotating bank of participants, as with the federal circuit courts of appeal, would not.
Model here? House of Lords, 1911, and the prospect of several hundred miners turned marquesses. Or FDR in the 1930s.
Posted by pseudonymous in nc | July 1, 2008 4:09 PM