Not Ideas About the Festival, But the Thing Itself

Ross had a big idea driven by watching Sandra Day O'Connor talk:

Over the past few years of court-watching, I've gradually moved from supporting some version of Scalia-style originalism to a much more radical judicial minimalism, in which the Court would show far greater deference to the other branches of government than either liberal or conservative jurists show today. (I have, of course, no qualifications to argue seriously for any theory of jurisprudence, but set that aside.) Of course, judicial nominees' fine-sounding theories of minimalism have a way of collapsing upon contact with the kind of power the Supreme Court wields, so perhaps we ought to consider enforcing it - for instance, by requiring a supermajority of the Justices (either 6-3 or 7-2) to deem any existing legislation unconstitutional.

When he explained that idea to me verbally yesterday, I liked it quite a bit because I, like Ross, increasingly think that the very strong system of judicial review we have in the United States is a bit of a problem. But the more I think about it, the less workable this proposal seems to me to be. Among other things -- where does this leave the Circuit and District Courts? And I'm not sure we can really define "deem any existing legislation unconstitutional" in an appropriate way, since our Court reviews cases rather than laws.

Meanwhile, to do this you'd have to change the constitution. Which is extremely hard. Indeed, it's essentially impossible. And as long as we're changing the constitution, I'd like to change that and make it easier to amend. It should, of course, be difficult to amend the constitution. But not as difficult as it is. And it's the difficulty of changing the text that helps make the stakes of Supreme Court jurisprudence so absurdly high. Other changes I'd like to see would including ending lifetime tenure for judges (something like 12 years give or take would be adequately long) so as to make it reasonable to expect presidents to nominate highly experienced people, and the inclusion of something like Canada's "notwithstanding clause".

[headline for this post doesn't really make sense, but I like the reference too much to let it go]

Comments

Why would you need to change the Constitution? I'm not a lawyer or an expert, but it seems to me that Article 3 defines the jurisdiction of the courts, but is silent about how the courts should organize themselves to decide cases. Seems like this could be done either by legislation or by the judicial equivalent of an "executive order" by the Chief Justice in his administrative role. Which is kinda scary when you think about it...

Posted by robsalk | July 1, 2008 1:23 PM

I don't see how you can talk about weakening judicial review without addressing whether the executive and legislative branches have shown themselves to be responsible in protecting individual rights, because you're talking about weakening the restraints on them. How does the recent record look? Not so hot?

Sure, the Courts are a very imperfect check, but they are a check nonetheless. I wouldn't monkey with it.

Posted by jbd | July 1, 2008 1:26 PM

Did anyone ask O'Connor if she has any regrets in life? Or if she is sorry for the last 7 1/2 years?

Posted by Joe Klein's conscience | July 1, 2008 1:26 PM

There's a lot to deal with in the post, and I hope others more qualified will address it, but:

1. I'm not sure you would have to amend the Constitution to change the voting rule for the Supreme Court, but it would probably be a fight.

2. There used to be a jurisdictional rule for appeals (I think) of cases deeming legislation unconstitutional, so there is a body of law defining that term.

3. You're crazy on lifetime tenure. That's one of the strengths of the system and one reason why, despite efforts to politicize it, the federal bench remains incredibly strong.

4. Finally, be careful what you wish for. Is it really a good idea to give the political branches more power. Maybe the S. Ct. has asserted its power a bit too much of late, but that's better than the alternative.

Posted by Rob | July 1, 2008 1:28 PM

And as long as we're changing the constitution, I'd like to change that and make it easier to amend. It should, of course, be difficult to amend the constitution. But not as difficult as it is. And it's the difficulty of changing the text that helps make the stakes of Supreme Court jurisprudence so absurdly high. Other changes I'd like to see would including ending lifetime tenure for judges (something like 12 years give or take would be adequately long) so as to make it reasonable to expect presidents to nominate highly experienced people.

Both of these proposals would significantly weaken the power of the judiciary to act as an independent check on the power of the other two branches. That's probably a bad idea.

If any branch of government has too much power, it's the executive. We have vested the power to launch a nuclear attack that could destroy the planet in just one human being.

Posted by Mixner | July 1, 2008 1:28 PM

For that matter, I've never really seen where judicial review comes into the Constitution at all. I had always thought that the significance of Marbury vs. Madison was that it established a precedent for judicial review that has been followed since. Reading Article III, I'm still not seeing it. Somebody want to point me in the right direction?

Posted by bcooper | July 1, 2008 1:32 PM

And as long as we're changing the constitution, I'd like to change that and make it easier to amend. It should, of course, be difficult to amend the constitution. But not as difficult as it is.

What amendments are you looking for? An anti-gay marriage amendment? Anti-abortion? Is there a liberal cause other than gun control that would be helped by making the constitution *easier* to amend?

Posted by Mike | July 1, 2008 1:35 PM

Also increase the vote requirement for appointment to federal courts to 2/3 of the Senate to put a stop once and for all to the appointment of extremist judges who get life tenure on the bench by tiny margins.

Posted by redwards95 | July 1, 2008 1:36 PM

Eww eww and eww.

Are you a secret fan of Unitary government? Seriously, at this point, the Judicial branch is the only branch that hasn't been gamed by the system. The legislative and executive branches are trying to create laws as a first resort for any perceived issue, and you want to gut the one mechanism that say, "no really guys, you're not allowed to do that, even if it's 'for the children' or to 'protect us from 'teh terrorists'"

We've had an unchecked power grab for the last 7+ years, and congress has aided and abetted the power grab with their 'compromises.' and since congress or the president doesn't seem to care if a law is constitutional or not, the only recourse left are the courts.

Maybe if you had a responsible executive and legislative branch, you wouldn't need a powerful judiciary, but that's sadly not the case.

Posted by Mark | July 1, 2008 1:37 PM

To bcooper: I think this is the language that does it...

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States.

As Justice Marshall says in Marbury, if there is a case that shows a conflict between the "Constitution" and "the Laws of the United States," then the "judicial Power" seems to be authorized to declare the latter invalid.

Posted by ASDem | July 1, 2008 1:52 PM

because I, like Ross, increasingly think that the very strong system of judicial review we have in the United States is a bit of a problem.

Given that you also have said that the executive branch has way too much power, a shorter Matt Yglesias post would read: "All Power to the Congress!"

Posted by dry_fish | July 1, 2008 1:58 PM

Anyone who thinks it's a serious problem in America that the Executive and Legislative branches aren't empowered to pass enough laws ... I don't know how to finish that sentence. I can just barely wrap my head around the concept, it's so preposterous.

I've got a better idea: Congress can only pass a law if a supermajority of the Supreme Court rules that it IS constitutional.

Posted by too many steves | July 1, 2008 2:03 PM

Matt,
Your support for eliminating the filibuster is one thing, but to support the the weakening of the courts as a coequal branch of government is very unwise. As other comments have suggested, they check government power in important ways. Their not being an elected body is a feature, not a bug; courts tend to draw on sources of information and analysis other than the vagaries of majoritarian pressures in adjudicating particular cases, compensating for some nearly inherent biases in pure democracies.

Posted by jason | July 1, 2008 2:09 PM

I, like Ross, increasingly think that the very strong system of judicial review we have in the United States is a bit of a problem.

Why? It seems like the tend world-wide has been towards an increased use of judicial bodies for dispute resolution. Ranging from the increased power of constitutional courts in Europe, to extra-national bodies like the EU to the quasi-judicial review in an organization like the WTO.

None of this is perfect, but the fact that judicial review is gaining ground in a wide range of settings suggests that there are reasons beyond just taste.

Posted by NickS | July 1, 2008 2:25 PM

Do you guys actually "think" about this stuff or just have a couple of beers and say what the hell -- why don't we just throw the entire apparatus of constitutional review out the window.

This is the kind of post I might write drunk and then sober up and be embarrassed. I hope that's the case here.

And why in God's name do you and Ezra treat Douhat (I won't even mention McArdle - oops) like someone whose opinions on any subject, much less constitutional jurisprudence, are deeply meaningful?

Posted by Sir Charles | July 1, 2008 2:36 PM

What amendments are you looking for? An anti-gay marriage amendment? Anti-abortion? Is there a liberal cause other than gun control that would be helped by making the constitution *easier* to amend?

Exactly!!! What Matt proposes would only make sense if people he agrees with are in power? The Democrats will win in November. However, just like the Republicans have done and just like Labor has done in the UK - they will over-reach and piss everyone off and loose in a landslide.

You may think, that if every position you are in favor of passed, the world would be a perfect place. However, the reality is you (as are we all) are wrong about a great many things. The thing that protects this country from veering too fast from one set of ill-conceived ideas on the left to another set of equally ill conceived ideas on the right is the courts.

It's worked well, and if it ain't broke don't fix it.

Posted by jmo | July 1, 2008 2:37 PM

The Constitution has been amended with some frequency over the past hundred years, so I am skeptical of the claim that it is an inordinately difficult task. I think Matthew is really complaining about the fact that what he favors isn't popular enough with the electorate to make the new Amendments he would favor likely. Thus, Matthew should work harder at persuading people, and stop complaining that Amendments are too difficult to pass.

I think there is a possibility that the Judicial Branch would improve with a term limit on judges, say, somewhere between 18-22 years.

Posted by Will Allen | July 1, 2008 2:39 PM

The courts are already overly differential to the other branches since they need approval by those branches to get their appointments - many things that should be categorically prohibited based on the language of the consitution have already had a multitude of exemptions added by the courts. Increasing deference to the legslative branch would be terrible for civil liberties, since the legislatures have never taken any proactive interest in defending them and if anything tend to push the limits of what they can get away with.

Posted by MattXIV | July 1, 2008 2:41 PM

To read this from Ross Douthat was odd, if not slightly understandable.

To read this from you, makes absolutely no sense at all whatsoever. I'm wondering if someone hijacked your login and password for this post.

The Supreme Court is one of the most outstanding features of the American constitutional system - a deliberative body insulated, to some extent, from outside political pressures, charged with interpreting and defending the founding document of this nation.

Time and again, the Supreme Court has defended unpopular minorities from popular authoritarian repression - Brown v. Board of Education, U.S. v. Eichman, Lawrence v. Texas, Boumediene v. Bush.

You would weaken the Supreme Court... to what end?

It is absolutely astonishing to read that any liberal who has just lived through two Bush Administrations full of illegal and unconstitutional abuses of power, wants to make it even easier to abuse that power!

Simply stunning.

Posted by Travis Mason-Bushman | July 1, 2008 2:41 PM

Travis, Matthew truly believes that majorities have inadequate power in the United States.

Posted by Will Allen | July 1, 2008 2:52 PM

I'd like to pile on here. People who are unhappy with the Court tend to start looking for ways to weaken it, but thank God that's never happened. The institution is great the way it is. If we need more/better liberal representation on the Court (or on the lower courts), we've got to get our political act together. But that's a far preferable problem to be facing that the problems that would arise from a weakened Court. Hell, I've always been annoyed by the breadth of the Court's "political question" doctrine, myself, a doctrine that probably insulates far too many of Bush's actions from judicial scrutiny.

Posted by Steve V | July 1, 2008 2:52 PM

Uhm, "it should be easier to amend the constitution" != "it's too difficult for the Executive and Legislative brances to pass laws."

In the 220 or so years since the Constitution was written, there have been only 27 amendments. Eleven of those were adopted within the first decade (including, of course, the Bill of Rights). Another four amendments were added in the 19th century (three of them relating to the freeing of slaves and racial suffrage).

That leaves twelve in the 20th century - and you'd expect to have a bunch in the 20th century, given the rapidly escalating rate of societal change. Two of those amendments cancelled each other out (prohibition). Four of them are expansions of suffrage. Five of them are about governmental procedure. And (setting aside the prohibition amendments) a whopping one amendment actually had something to do with nonvoting rights and the everyday lives of citizens (federal income tax). The last amendment was in 1992, concerned congressional pay raises, and is basically non-operative thanks to various workarounds.

In the meantime the Supreme Court has been the primary engine not just for some of the 20th century's amendments, but pretty much every other expansion and alteration of the composition of individual rights in the USA. A lot of people, including myself, understand the active role the Supreme Court has come to play as a systemic counter to the extreme difficulty of getting equivalent legislation, especially constitutional amendments, passed in Congress. A lot of people, including myself, would prefer it if some of these rights expansions were more solidly entrenched in the constitution so that they couldn't be overturned by five SC justices. There's, obviously, a lot of issues involved with the idea of moving all this stuff over into constitutional amendments, but what shouldn't be controversial is the idea that there's an imbalance between the influence of the Supreme Court and the influence of the amendment process as far as changing the basic laws of the country.

Posted by Medrawt | July 1, 2008 2:52 PM

Making it easier to amend the Constitution is an extremely double-edged sword though, Medrawt - particularly for those of us who cherish civil liberties.

For example, a proposed Constitutional amendment prohibiting flag burning has come within one vote in the Senate of passing. If enacted, that would have set an absolutely terrible precedent toward restricting politically unpopular speech and expression.

As MattXIV noted, legislative and executive bodies have never been particularly great friends of civil liberties. It is always a quick, cheap and easy shot for legislators to do stuff that makes great soundbites and is often politically popular - ban violent video games, castrate sex offenders, torture terrorists, force Christianity into science classrooms, etc. - yet which is repugnant to our Constitutional framework of individual rights and restrictions on governmental authority.

Make it easier to amend the Constitution, and we invite all manner of popular, sound-bite politics to write themselves into our supreme law.

Posted by Travis Mason-Bushman | July 1, 2008 3:08 PM

Travis Mason-Bushman -

Of course, which is why I responsibly glossed those problems with the comprehensive "a lot of issues" towards the end.

More seriously, I generally try, perhaps too hard, to keep my "political science" opinions untainted by my "political" opinions. To pick an extreme example, if I for some reason thought that abolishing universal suffrage would result in the permanent establishment of every policy preference I've ever held dear by a benevlolent and immortal dictator, I'd like to think I'd still support universal suffrage.

And, obviously, the use of constitutional amendments for things like flag burning ticks me off because in addition to being contrary to, oh, everything I understand about the principles of our country, it's also a measure grossly out of proportion with the issue.

What I really mean to say is that on a biased, political level, I don't want to have a Congressional fight over an amendment explicitly granting, say, a right to privacy, because it'd be an ugly fight and I wouldn't come away with what I wanted. On the other hand, I might prefer to have the Supreme Court and our legal system fluctuating around an unsatisfying constitutional amendment vs. having the whole edifice sitting on top of some Supreme Court precedents that can be overturned if you get the right coalition together.

Posted by Medrawt | July 1, 2008 3:24 PM

For years you've rightly been complaining about Bush's executive overreach ... and now you wish there was a clause that let him legally circumvent the Bill of Rights? Look up some of the domestic debates in Canada over the Notwithstanding Clause, which many people including myself believe should be eliminated, and then see if you still want that in you Constitution.

Posted by Nav From Canada | July 1, 2008 3:32 PM

Keep thinking like this-- we make the right adjustments, and with one more terrorist attack we can probably get rid of that pesky habeas corpus and voting rights altogether.

Posted by Persia | July 1, 2008 4:16 PM

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!

Posted by BigA | July 1, 2008 4:18 PM

Well, and the big bone picked in Ross' blog: so, what happens if you have a 5-4 on Constituional grounds? The law stands, but the case is decided anyways just for that single example? Huh?

Posted by Sanjay | July 1, 2008 5:11 PM

redwards95: "Also increase the vote requirement for appointment to federal courts to 2/3 of the Senate to put a stop once and for all to the appointment of extremist judges who get life tenure on the bench by tiny margins."

Amen. But make it 2/3 of each house. Actually, the extremist problem could be pretty much obviated if, say, more than one party knew how to exercise the filibuster.

Oh, and one more thing: let's leave personal issues out of this, at least concerning our host.

Posted by Henderstock | July 1, 2008 5:15 PM

Other changes I'd like to see would include...the inclusion of something like Canada's "notwithstanding clause".

I just clicked on that link, because I've never heard of this "notwithstanding clause" before.

Do I have this right? You want to grant the legislature the power to pass laws that violate citizens' constitutional rights...so long as the laws expire every five years? Because if that's the case, I have to wonder whether you've suffered some sort of psychological trauma. That's the most insane thing I've ever heard. Why in the name of Thor would you ever want to give Congress that power? Jesus God, the mere thought of it makes me want to buy a large number of guns and storm the Capital building.

Posted by Jeff | July 1, 2008 5:42 PM

Notwithstanding the First Amendment, anybody who doesn't pledge allegiance to the U.S. government goes to jail! But only for five years!

Posted by jeebus | July 1, 2008 6:43 PM

Wait... he wants to make it HARDER to declare something that breaks the Constitution to beunconstitutional?

Posted by Anthony Damiani | July 1, 2008 7:26 PM

Easily the worst post I've ever seen here.

Posted by jbryan | July 1, 2008 7:33 PM

You have to give the SC this: the maintenance of incredibly opaque and secretive internal procedures have served remarkably well at maintaining the mystique of the court as some sort of righteous institution impervious to political whim. That the court might be just one more political branch, that the justices might not be endowed with Solonic wisdom but are merely nine more posturing politicians, seems hard to admit. Even after it has been settled within the legal academy that judicial decision making is undeniably politically motivated (Even after Bush v. Gore!). Nine posturing politicians, with the important difference that they are uniquely unaccountable to the public for their pronouncements.

I understand that liberals feel embattled by the experience of the past 8 years (or the past 40, for that matter), but it is sometimes galling how little faith the avowed champions of voting rights and democracy have in the actual democratic process. If you feel comfortable believing that the voters deserve to have some limited say, but that they really can't be trusted with such things as the fundamental law which establishes the essential nature of their own government, maybe you should stop calling yourselves "Democrats."

Posted by phensley | July 1, 2008 7:36 PM

phensley, in a nation which is currently dominated by sound-bite news and sensationalistic scare-mongering designed to create a culture of fear - "Gay Muslim terrorist sex predators are grooming your children online through Grand Theft Auto IV, experts say" - the solutions proffered are virtually always designed to take away our rights and liberties as American citizens.

Anything wrapped in the flag and disguised as "tough on crime and terror" or "all-American" or "family values" will get passed, because low-information voters are easily duped by TV ads and hitpieces. Oppose it, and you hate America. There's a massive laundry list of these things.

The PATRIOT Act - warrantless wiretapping and Internet surveillance
The war on some drugs, which is a gargantuan waste of money and lives
Arrest, indefinite detention and torture of "terrorists" without trial, hearing or ability to present a case
Attempts to ban/restrict 'violent' video games/music/media
Longer and longer prison sentences, to the point where we imprison more people than any other nation on Earth.
Measures to ban flag-burning or other unpopular speech
Increasing attempts to restrict/monitor travel and commerce, via the so-called "REAL ID"
Attempts to sneak pseudoscientific "intelligent design" (fundamentalist Christianity) into public school science classes

I'm sure there's a lot more examples people can come up with, of popular hysteria attempting to override constitutional principles of freedom of speech, expression, religion, privacy and unwarranted arrest.

So no, voters can't be trusted with our fundamental rights. The masses have shown repeatedly that they're willing to give them up in a heartbeat if someone tells them that if they don't vote to, say, let the government examine their library records, then Osama bin Laden will come into their home, marry their son, set off a suitcase nuke in their church and convert the whole town to Islam.

Posted by Travis Mason-Bushman | July 1, 2008 8:17 PM

Time for a reality check: Over hte course of U.S. history, it has actually been Congress (especially the House of representatives) that has been the branch that has been the most pro-civil liberties. Go read any of Daniel Lazare's accounts of Congress' battles with the Courts over Civil Rights and anti-lynching legislation, any good book on the Lochner era, or just go read any of the decisiions from the "New Federalism" cases crimping the right to trial by jury, the Voting Rights Act, the Civil Rights Act, The Ku Klux Klan Act's protection of non-African Americans, ERISA protection of employees from bad faith claim denials on their employer health insurance, The Americans with Disabilities Act, or the Violence Against Women Act.

The courts (especially once you get away from the trial courts and their juries) are as much tools of elite consensus as they are champions of the Bill of Rights.

Posted by Alabama tribune | July 2, 2008 5:12 PM