Res Ipsa, your thoughts please

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Vēritās
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Res Ipsa, your thoughts please

Post by Vēritās »

This was published two years ago, so unrelated to the recent RvW decision:

Democrats have a better option than court packing

The easiest way to defeat right-wing judicial tyranny is to ignore it

With the unfortunate death of Supreme Court Justice Ruth Bader Ginsberg, Republicans are licking their chops at the prospect of a 6-3 conservative supermajority on the nation's highest legal body. This would be an obvious violation of the "principle" Senate Majority Leader Mitch McConnell announced in 2016 to prevent Democrats from filling Antonin Scalia's seat after he died, but McConnell was lying then just as he's lying now about the supposed distinction.

One potential nominee is Amy Coney Barrett, a hard-line social conservative who has suggested that paper money, West Virginia, the Fourteenth Amendment, and the Social Security Administration are all possibly unconstitutional. While Chief Justice John Roberts has shown some political discretion in his rulings to date, should another right-wing extremist like Barrett be confirmed, he will no longer be the swing vote on the court. It seems quite likely that Roe v. Wade and the Affordable Care Act will be struck down, if not basic building blocks of the American state, and future Democratic presidents will find nearly everything they do overturned automatically under the noble legal principle of "if Democrats do it, it is unconstitutional."

In response, even moderate liberals are proposing a variety of bold options, like adding additional seats to the court as Franklin Roosevelt once tried to do to push the court to stop overturning his New Deal programs. However, there has been comparatively little attention to the simplest and easiest way to get around potentially tyrannical right-wing justices: just ignore them. The president and Congress do not actually have to obey the Supreme Court.

The weird thing about judicial "originalism" is that the explicit principle of judicial review is nowhere to be found in the Constitution. All of that document's stipulations on how the courts are to be constructed are contained in one single sentence in Article III: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Actual judicial review was a product of a cynical power grab from Chief Justice John Marshall, who simply asserted out of nothing in Marbury vs. Madison that the court could overturn legislation — but did it in a way to benefit incoming president Thomas Jefferson politically, so as to neutralize his objection to the principle.

Jefferson famously hated judicial review. In one letter, he said it is "a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so." But because of Marshall's canny political strategy, from that day forward Congress and the president have mostly deferred to the court's views and allowed it to strike down laws or establish entirely new legal principles even on completely spurious grounds.

As Matt Bruenig argues at the People's Policy Project, it would be quite easy in practical terms to get rid of judicial review: "All the president has to do is assert that Supreme Court rulings about constitutionality are merely advisory and non-binding, that Marbury (1803) was wrongly decided, and that the constitutional document says absolutely nothing about the Supreme Court having this power." So, for instance, if Congress were to pass some law expanding Medicare, and the reactionaries on the court say it's unconstitutional because Cthulhu fhtagn, the president would say "no, I am trusting Congress on this one, and I will continue to operate the program as instructed."

No doubt many liberals will object to this idea. It would be a fairly extreme step in terms of how America's constitutional system functions, and a lot of Democrats fear the idea of a Republican president not being hemmed in by the legal system. Big chunks of liberal political advocacy (like the ACLU) rely on pressing political cases through the courts. Conversely, conservatives have long advanced the idea that they are against "judicial activism," which makes liberals favor it more through negative polarization.

But in retrospect, Jefferson was absolutely right — American-style judicial review is, on balance, terrible. The Supreme Court still has a reasonably good reputation among liberals, probably because of the lingering afterglow of the Warren court's decisions attacking Jim Crow apartheid, and the occasional other rulings advancing civil rights, like when gay marriage was legalized (though this probably only advanced what was already going to happen by a few months). But considered in context, the court has been a bulwark of racism, reaction, and capitalist tyranny for almost its entire existence. Rulings enshrining slavery and Jim Crow, protecting racist murderers, banning basically all public health or labor regulation, or legalizing corruption far outweigh the brief and (not terribly effective) period of Warren court decisions. By the same token, conservatives are lying when they say they are against judicial activism. What they mean is that the legal system should enact their preferences by judicial fiat, and strike down those of Democrats. Judicial review is better for the right than the left, because the right generally wants to stop reforms from being passed, the legal profession is structurally conservative, and the legal system is relatively immune to democratic accountability. All that is why McConnell is stuffing the courts full of right-wing judges. They hide this anti-democratic objective behind overheated rhetoric accusing their opponents of exactly what they are doing.

Others might object that undermining judicial review would violate the rule of law. Indeed, most Americans are taught from a young age that the Supreme Court being able to strike down laws is what it means to have the rule of law. But this is not true. For one thing, as Doreen Lustig and J. H. H. Weiler write in the International Journal of Constitutional Law, judicial review is not nearly as intrusive in every other country as it is here. Some nations, like Austria or France, have a special Constitutional Court which rules on constitutional questions, but relatively infrequently. In others, like Finland or Denmark, judicial review basically never happens. In no other developed democracy does basically every piece of major legislation have to run a years-long gauntlet of tendentious lawsuits trying to get through the courts what parties could not get through the legislature.

Moreover, simply refusing to agree to judicial review has happened before in American history. As historian Matt Karp writes at Jacobin, when the Civil War broke out, President Lincoln and Congress ignored the Dred Scott decision in a law banning slavery in all federal territories, and when Chief Justice Roger B. Taney ruled Lincoln did not have the power to suspend habeas corpus, the president ignored him. As Karp argues, storming the citadel of reactionary court power was necessary to destroy slavery.

It would probably be unwise for an incoming Democratic president to announce immediately he or she is done with judicial review. But it should always be kept in mind as a potential option. Courts can violate the law, the Constitution, and the basic principles of representative democratic government. The lawsuit currently in progress trying to strike down ObamaCare (which will be heard after the election) is so utterly preposterous that should the court agree to it, it will reveal itself to be a judicial tyranny — a lawless negation of legislative power. When confronted with that kind of ruthless usurpation of America's republican values, one should be ready to respond in kind.
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Re: Res Ipsa, your thoughts please

Post by Kukulkan »

Considering I have been anointed by you as Res's sock, I shall take a quick stab at it. I am sure my main account Res Ipsa will offer a much more thorough analysis. :lol:

Lincoln ignoring the Dred Scott only came after the onset of the Civil War. The passage of laws through the Civil War Congress that ignored the Dred Scott decision and Lincoln suspending habeas corpus were decisions made while the country was at war with itself. Extreme circumstances called for extreme responses. While our country is certainly divided, we have not yet taken up arms against one another. Interestingly, while a member of Congress, Lincoln gave a speed in respond to the ruling where he actually advocated for it to be upheld and obeyed, despite being in stark disagreement with it.
We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendment of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.
If either party were to disregard and ignore a SC decision that ruled against their political values, the opposite party would surely respond in kind at some time the future where the circumstances were reversed. Then what? The SC ceases to be an institution or hold any weight considering the opposite party can "pick and choose" what rulings it wants to follow. Who says this doesn't also apply to laws the other party passes in Congress? EO's issued by the President? Democracy and society rely on the unspoken agreement that we as members of society will uphold and legitimize these institutions EVEN when they rule or legislate in ways we severely disagree with. It also requires that we work within the boundaries we have regularly established. Now I guess you could argue that we are in such a dire situation, but that would come down to personal interpretation. I do not believe that we are.
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Re: Res Ipsa, your thoughts please

Post by Res Ipsa »

I'm happy to respond, but I claim no special insight into this issue.

Let's start by examining the notion that the Constitution doesn't provide for judicial review. For that, let's look at what Article III says:

Here's Section 1:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Pretty vague. It tells us that there is something called "judicial power." Whatever it is, the Constitution vests it in one Supreme Court. Congress can also vest it in "inferior courts."

Here's Section 2:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, 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.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
Gallons of ink and reams of paper have been used in attempt to figure out just what the hell the first two paragraphs mean. Thanks, founders.

The first paragraph is one long sentence that starts with "The judicial power shall extend to all cases..." So, the Constitution itself commands that this "judicial power" apply to certain categories of cases, including cases arising under the U.S. Constitution and under the laws of the United States. Note that the language used in the sentence changes at some point: it goes from "all cases" to "controversies." What's the difference? Lots more ink and paper used by people much smarter than me. Does this shift in language mean anything? Beats me. But note that the Constitution also says that the judicial power must extend to "controversies between citizens of different states," which must mean cases under state law (because federal law was covered earlier in the sentence).

So, we know that the Constitution requires this "judicial power" to extend to certain categories of "cases" and "controversies." Now look at the second paragraph. It divides the jurisdiction of the Supreme Court into "original" and "appellate." The Constitution itself says what the Supreme Court has original jurisdiction over. And, historically, we can tell that "original jurisdiction" means "does what a trial court does." In all other cases, the Supreme Court "shall" have appellate jurisdiction, but subject to "exceptions" and "regulations" made by Congress.

And that's it. Nothing else in the Constitution tells us what this "judicial power" is. Thanks again, founders.

But do think there's an important clue. The Constitution gives the Supreme Court jurisdiction over cases under the U.S. Constitution. Remember, this language was adopted before there was a bill of rights. As the Constitution at that time only applied to the federal government, what could a case under the U.S. Constitution be other than a claim that the other branches were exceeding their powers given to them by the Constitution. And, if the claim involved something Congress did, then we're talking about a law because that's what Congress does. So, I find the notion that judicial review was completely "made up" questionable. If the other two branches were free to simply ignore the Supreme Court when it decides a case under the U.S. Constitution, why bother?

Historically, judicial review was a concept that was well known to the framers, (although their opinions on it varied). It was accepted in at least some states as a restraint on unjust laws. So, although Marbury v. Madison was the case in which judicial review was formally adopted, it isn't like the Court just made the concept up out of thin air.

There is a knee jerk reaction to a perception of "losing" which is to attack the rules of the game and try to change them. Part of the rules of the game here is that the rules themselves tell us how to change the rules. The Constitution gives Congress the power to make "exceptions" to the Supreme Court's appellate jurisdiction. If we really think it's a good idea to eliminate judicial review (and here, I think the Shades rule fully applies -- be careful what you wish for), then that should be accomplished through the method provided by the Constitution -- legislate an exception to the Court's appellate jurisdiction. Just take away the power to invalidate statutes. And buckle up the next time the opposing party comes into power.

Simply telling the Court to go to hell would be a constitutional crisis to which folks on the right would react... uh.... poorly. Maybe just start buying guns and shooting each other, because that's what that decision to lead to.

IMHO.
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Re: Res Ipsa, your thoughts please

Post by Res Ipsa »

Kukulkan wrote:
Tue Jun 28, 2022 11:54 pm
Considering I have been anointed by you as Res's sock, I shall take a quick stab at it. I am sure my main account Res Ipsa will offer a much more thorough analysis. :lol:

Lincoln ignoring the Dred Scott only came after the onset of the Civil War. The passage of laws through the Civil War Congress that ignored the Dred Scott decision and Lincoln suspending habeas corpus were decisions made while the country was at war with itself. Extreme circumstances called for extreme responses. While our country is certainly divided, we have not yet taken up arms against one another. Interestingly, while a member of Congress, Lincoln gave a speed in respond to the ruling where he actually advocated for it to be upheld and obeyed, despite being in stark disagreement with it.
We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendment of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.
If either party were to disregard and ignore a SC decision that ruled against their political values, the opposite party would surely respond in kind at some time the future where the circumstances were reversed. Then what? The SC ceases to be an institution or hold any weight considering the opposite party can "pick and choose" what rulings it wants to follow. Who says this doesn't also apply to laws the other party passes in Congress? EO's issued by the President? Democracy and society rely on the unspoken agreement that we as members of society will uphold and legitimize these institutions EVEN when they rule or legislate in ways we severely disagree with. It also requires that we work within the boundaries we have regularly established. Now I guess you could argue that we are in such a dire situation, but that would come down to personal interpretation. I do not believe that we are.
I have no argument with myself.
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Re: Res Ipsa, your thoughts please

Post by Kukulkan »

Res Ipsa wrote:
Wed Jun 29, 2022 12:22 am
I have no argument with myself.
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Re: Res Ipsa, your thoughts please

Post by honorentheos »

The suggestion of abandoning the role of the courts in democracy is an example of illiberalism. Just in case there are those still curious about that.
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Re: Res Ipsa, your thoughts please

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honorentheos wrote:
Wed Jun 29, 2022 12:36 am
The suggestion of abandoning the role of the courts in democracy is an example of illiberalism. Just in case there are those still curious about that.
would packing the court be illiberal?
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Re: Res Ipsa, your thoughts please

Post by honorentheos »

Gadianton wrote:
Wed Jun 29, 2022 12:55 am
honorentheos wrote:
Wed Jun 29, 2022 12:36 am
The suggestion of abandoning the role of the courts in democracy is an example of illiberalism. Just in case there are those still curious about that.
would packing the court be illiberal?
The phrase implies the intent is to eliminate independence of the judiciary. If that is the goal, yeah. Packing the courts would be illiberal.
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Re: Res Ipsa, your thoughts please

Post by Res Ipsa »

Gadianton wrote:
Wed Jun 29, 2022 12:55 am
honorentheos wrote:
Wed Jun 29, 2022 12:36 am
The suggestion of abandoning the role of the courts in democracy is an example of illiberalism. Just in case there are those still curious about that.
would packing the court be illiberal?
Which raises the musical question: procedurally illiberal, substantively illiberal, or both?

To be honest, my level of analysis is pretty much confined to “good idea or bad idea.”
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Re: Res Ipsa, your thoughts please

Post by honorentheos »

To be clear, I believe the legitimacy of the current court is damaged. It reflects McConnell's abuse of the Senate's role in the nomination process to tilt the court to a particular partisan aim. Dobbs is a decision with hard illiberal implications that were made possible by illiberal political machinations. Democracy is looking hobbled in the US as is. I don't know that there are perfect answers that are viable. But even still, it shouldn't prevent us from applying principles first. Otherwise, the war is lost so it wouldn't really matter who then won which battles.
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