Wednesday, June 27, 2012
You Are The Weakest Branch. Goodbye!
The Supreme Court, among institutions of the federal government, experiences the fewest (if any) checks and balances. I have always been uncomfortable with Marshall's assumption for the Court of the power of judicial review: in its most extreme form, it gives the Court a power quite literally unchecked by any other branch. This is doubly so given the difficulty of amending the Constitution (in general, a good difficulty IMHO). If a Court decides, as this one apparently has, to wield effectively authoritarian power, it certainly has the means to do so.
This has the ring of truth, but I think that Hamilton's observations in 1788 still hold overall:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they 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...The judiciary...has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power...It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter.
I certainly acknowledge that SCOTUS and the Judiciary are potential--in some cases, very real--threats to individual rights but given Madison's fears of tyranny at the state level, which I think is very much more pronounced today, the Court has proven to be a significant firewall against the spread of some injustice: just look at this week's rulings on sentencing and immigration. And the branch really is checked fairly easily when contrasted with the Imperial Presidency.
Granted, some limiting mechanisms have a high bar. Only one life-tenured Supreme Court Justice has ever been impeached, and Chase wasn't successfully removed at that. FDR's Court Packing plan fizzled, though it has been given credit in some circles for putting the fear of God into the Nine Old Men and saving New Deal programs subsequently.
But the fact remains that SCOTUS can't actively change law, but by design is passive and reactive, waiting for cases to be brought before it. Congress can more effectively write new law to overcome constitutional objections, and even change the Court's jurisdiction. The President can sign such legislation and ignore rulings. And yes, even though it's hard, we can and have amended the Constitution a number of times, explicitly repudiating what the Supremes have decided.
I have no love for Andrew Jackson (who is famously misquoted responding to Marshall's ruling in Worcester v Georgia regarding my Cherokee ancestors), but he was close to home in his message on vetoing the Second Bank of the US:
The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.
We do tend to treat SCOTUS as the ultimate arbiter of constitutionality, but everybody is responsible for interpreting the supreme law as they execute their duties. And they all ought to be jealous of their powers. There is no final step, so even if SCOTUS strikes down, say...ACA tomorrow, that's not the end of the process of reforming healthcare.
I'm not wholly in the departmentalist camp, but checks and balances aren't supposed to be super easy. You can work to limit expansion of power in one arena, but it comes with a cost (political or otherwise). If it were too easy to stomp on another branch, we'd have no government. As Justice Jackson said:
While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.
While the Judiciary is not democratic, that's part of the point. We've seen recent examples of direct democratic action in CA and NC wherein the People in their collective wisdom voted to deny basic civil rights to their fellow citizens. The Court--even the Roberts Court--can mitigate the problems of mob rule. Judicial review is a necessary power to check other branches and other levels of sovereignty to preserve liberty, and functions in concert with the other branches to foster working governance.
Review is also a logical component of the courts' role in our republican system, as I think the Framers really understood. While Justice Marshall might have made this more explicit than our Constitution--though he didn't use the phrase "judicial review" either--he didn't really assume any power the Court did not already possess.
When you look at the Council of Revision that was proposed which was proposed in Convention on June 4, 1787, you can really get the context. Basically it was a vetoing body that included the Executive and members of the Judiciary. Objections were raised from the start:
Mr. GERRY doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had actually set aside laws as being agst. the Constitution. This was done too with general approbation. It was quite foreign from the nature of ye. office to make them judges of the policy of public measures. He moves to postpone the clause...
Mr. KING seconds the motion, observing that the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.
When Madison later proposed having a Federal veto on State laws:
Mr. Govr. MORRIS was more & more opposed to the negative. The proposal of it would disgust all the States. A law that ought to be negatived will be set aside in the Judiciary departmt. and if that security should fail; may be repealed by a Nationl. law.
And when the Council was again debated:
Mr. L. MARTIN. [A]s to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws. Join them with the Executive in the Revision and they will have a double negative. It is necessary that the Supreme Judiciary should have the confidence of the people.
Mr. RUTLIDGE thought the Judges of all men the most unfit to be concerned in the revisionary Council. The Judges ought never to give their opinion on a law till it comes before them. He thought it equally unnecessary.
Our government under the proposed confederation, will be guarded by a repetition of the strongest cautions against excesses. In the senate the sovereignties of the several states will be equally represented; in the house of representatives, the people of the whole union will be equally represented; and, in the president, and the federal independent judges, so much concerned...in the determination of [the laws'] constitutionality, the sovereignties of the several states and the people of the whole union, may be considered as conjointly represented.
A couple years after that, Madison said when he introduced the original Bill of Rights for consideration:
[I]ndependent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.
[The courts] will, in this elevated and independent situation attend to their duty--their honor and every sacred tie oblige them. Will they not attend to the constitution as well as your laws? The constitution will undoubtedly be their first rule; and so far as your laws conform to that, they will attend them, but no further.
The point being that "expounding" the law inherently involves deciding constitutional questions, and if the highest court in the land rules something is repugnant to the supreme law of the land, all lower courts have to follow suit. Then the other branches will have to figure out whether and how to respond (e.g., SCOTUS tossed out a flag burning ban, Congress tried again, lost again and gave up).
By themselves, yes, a handful of people with lifetime jobs in charge of our fate would be extremely dangerous. Fortunately, there are 2 other co-equal branches also doing their jobs. On the flip side, I'm glad that those other departments don't have the final word, either.
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