Globe columnist Jeff Jacoby got it right in his New Year’s Day column:
The Supreme Court can’t be absolute
NEWT GINGRICH’S presidential ambitions may be heading for the exits – opinion polls suggest that the former House speaker’s hour has come and gone – but his critique of judicial supremacy deserves to be taken seriously no matter what happens in Iowa or New Hampshire.
In a 54-page position paper , Gingrich challenges the widely held belief that the Supreme Court is the final authority on the meaning of the Constitution. Though nothing in the Constitution says so, there is now an entrenched presumption that once the court has decided a constitutional question, no power on earth short of a constitutional amendment – or a later reversal by the court itself – can alter that decision.
Jacoby goes on to quote a large collection of illustrious people and the historical record to explain what should be self-evident to anyone who considers the idea: five people should not be allowed to make laws for the entire country.
This is, of course, the power that the Court presently asserts.
Congress and the President have more right to judge the constitutionality of legislation than the Court since they also swear an oath to protect the document and are elected by the rulers: the people. They should assert it.
(Gingrich’s position paper contains a number of suggestions for Congress and the President, starting on Page 19. Some are better than others. Take a look for yourself, and see what you think).
hoyapaul says
Of all of Gingrich’s statements and actions during his campaign, most of which have been absurd, his statements about the judiciary were some of the more interesting and the reaction against them remarkably (though predictably) off-point.
Gingrich (and, by extension, Jacoby) are correct that “judicial supremacy” is a fiction that the federal courts continue to perpetuate but which has no basis in either the Constitution specifically or in democratic governance more generally. What both Gingrich and his (mostly liberal) critics both generally fail to note, however, is that the federal courts have generally been an ally to conservatives, not to progressives. This was true during the time of Jefferson, Lincoln, and FDR, not to mention more recently as well.
Apparently the ultimately modest (in terms of actual impact) efforts of the Warren Court from 1953 to 1969 have led too many progressives into thinking that the courts are a “necessary safeguard” to protect civil rights and liberties. This is highly debatable. Not only have the federal courts historically been a protector of conservative interests, but I’d contend that the other branches of government have on balance been more friendly to rights-protection that the federal courts (see, for example, how much more expansively Congress has provided for remedies for employment discrimination than the Supreme Court, which has frequently narrowed such remedies).
It’s puzzling to me why so many modern-day liberals go out of their way to defend variations of judicial supremacy.
David says
Well, the vast majority of those are statutory cases, and Congress can (and has) simply fixed what the Court got wrong, Lily Ledbetter being the most recent example. That’s more or less how it should work, no?
hoyapaul says
But my point is simply that trusting the courts to be “protectors of rights” as opposed to Congress is a mistake. Given that the realm of rights-protection have become (since the 1960s) an issue far more of statutory interpretation rather than constitutional interpretation, this is no small point.
Even on constitutional issues, however, it is interesting how Congress (and state legislatures) have frequently been been more rights-expansive than the Supreme Court (see, for example, Congress overturning Oregon v. Mitchell via constitutional amendment and state government reactions to San Antonio School District v. Rodriguez).
(I’d also note that in an era where the Senate has now become a permanently super-majoritarian body, reversing rights-narrowing statutory decisions by the Court has become far from simple. This dynamic essentially grants the Court even greater power over public policy, which is not a good thing).
centralmassdad says
The principle that the judiciary may overturn a statute enacted unreasonable or repugnant was present in the common law at least as far back as Sir Edward Coke, and was a debtated but extant thing in that common law at the time of our Revolution.
The notion fell out of favor in Britain when Blackstone introduced the notion of Parliamentary sovereignty in the late 1700s; the principle there is that the Parliament is superior to all other government institutions, in all things.
There is nothing whatsoever in the US Constitution that would be a parallel to Parliamentary sovereignty: rather, we have separation of powers, which might be the antithesis of Parliamentary sovereignty. Unless one supposes that the US Constitution was intended to do away with existing common law (good luck with that), there isn’t much reason to think that judicial review is at all inconsistent with the US Constitution. I’m not sure that its basis in “democratic governance” is relevant; we are not, with the exception of certain New England towns and the issues reserved to town government, so governed.
hoyapaul says
but they relate more to the overall practice of judicial review as opposed to the more recent vintage of judicial supremacy. As the Court put it in Cooper v. Aaron:
While an understandable overstatement given the unusual circumstance of the Cooper v. Aaron case, it also is plain wrong — both in terms of what Marbury actually held and for the statement that judicial supremacy has been a “permanent and indispensable feature of our constitutional system.”
You very nicely summarize the fact that while not written into the Constitution, judicial review was far from novel when Marshall exercised it in 1803. However, there is nothing in English or American common law or jurisprudence to suggest that the federal courts are “supreme” in interpreting the Constitution. That, to paraphrase a commenter below, is “madness”, and has no basis in a democratic nation.
The Supremacy Clause makes the Constitution, not the federal judiciary, supreme. Constitutional interpretation has long been viewed, in theory and in practice, as a duty of all three branches and not just the courts. I’d also put Congress’s historical record in protecting civil rights and liberties against the federal courts’ any day of the week.
centralmassdad says
If Congress passes a statute, presumably it thinks it Constitutional. If the President signs it, presumably he agrees. If the statute is the Alien and Sedition Act, one would like a Court to weigh in; otherwise our government is little more than tyranny by mob.
If the courts can weigh in, and overturn such a statute, it matters little what word they use in doing so. If the courts cannot, then individual rights are what 51% of Republican Congressman say they are.
In the event, the Alien and Sedition Acts, which predate Marbury, were not challenged in Court, but only in the political arena, and then with a savagery and bitterness that make our own partisan times seem like a –ha– tea party. Absent a meaningful judicial check on the legislature and executive, the Virginia and Kentucky Resolves encouraged states toward nullification and secession, tactics that ultimately proved not especially good at protecting individual liberty or the commonweal.
In any event, Congress and the President are not pygmies before the almighty power of the Courts, whatever Gingrich says, but have their own ways of curbing the power of the courts.
Europe does a great job in protecting these rights with no constitution and no court with authority like that of the USSC, unless you are Irish… in England. Or Turkish… in Germany. Or Algerian… in France. Or Roma… anywhere. In those cases, well, you’re just screwed.
hoyapaul says
I don’t think a statute enacted by a duly elected House of Representatives and an elected Senate and signed into by an elected President is “tyranny by mob.” Indeed, few countries have a legislative process as convoluted and intentionally inefficient as America’s. That doesn’t mean bad legislation doesn’t occur, of course. But if it does, than we have elections that allow for the political branches to be punished (just as what happened following passage of the Alien and Sedition Acts situation, in fact! I’m not sure why this is a good example for your position).
What appears clearer is the other side of the ledger — that of having a handful of non-elected people on a federal court claiming supreme power over constitutional interpretation. This, I believe is a greater danger to democratic governance than the prospect of a highly inefficient legislative system is of resembling “tyranny by mob.” Indeed, given that courts have a poor track record of protecting liberties — at least as poor as Congress itself, if not worse — even the supposed benefit of the courts is little more than an illusion. Perhaps the courts are a soothing psychological crutch to whichever political group happens to be out of power at the time, but that’s hardly a reason to defend an concept of judicial supremacy that was previously alien to American law.
David says
I think this is precisely the point about Cooper. Never before or since have all nine Justices signed their name to a single opinion. Did they overstate the “judicial supremacy” point? Maybe. So what – it was in the service of a serious constitutional emergency, and it was the right thing to do at the time. People on both sides of the debate overreading Cooper‘s rhetoric seems a bit silly to me.
Beyond that, I agree with CMD that we are really getting into semantic hair-splitting.
hoyapaul says
Again, the problem is less Cooper v. Aaron itself than the fact that subsequent courts have repeatedly cited the case for the proposition that the courts have supreme power to interpret the constitution.
I hardly see why it’s “hair-splitting” to lament the move from judicial review to judicial supremacy (the former being a far more limited concept than the latter).
centralmassdad says
It has been a few years since I read that Cooper case, but I thought that the “supremacy” language was in reference to a state that decided it was exempt from Brown v. Board of Ed. Supreme with respect to a state, not supreme with respect to Congress.
Okay, it is cited a lot, but so what? “Restraint” sounds more limiting than “supremacy” but what can the latter do that the former cannot, that you find so objectionable?
David says
I’d like to know the answer to that too. Though I think CMD’s intended “former” reference is “review” (rather than “restraint”) – i.e., what, really, is the difference between a court with the power of “judicial review” and a court that has “judicial supremacy,” whatever that is?
centralmassdad says
New Year’s Resolution: make comments editable
hoyapaul says
between the two is that “judicial review” implies a court more willing to give credence to the other branches’ own constitutional claims. As a practical matter, this implies a court much less likely to overturn acts of Congress.
As I noted earlier, there is a considerable difference between striking down acts of states and acts of Congress. Using the power of judicial review to review state legislation is consistent with the role of the courts in a federal republic (as opposed to a confederacy), furthers the goals of the Supremacy Clause, and operates similar to Madison’s proposed veto on state laws (which, of course, was rejected — but which recognized the inevitable problem of states deciding what the federal constitution means).
However, there is much less of a justification or need for the Court using judicial review to strike down acts of Congress. The more the Court claims judicial supremacy as opposed to judicial review, the more active the federal courts are liable to be in striking down national legislation. Indeed, this is precisely what has happened. Rather than accepting constitutional claims of the other branches, the federal courts (and much of the modern public) treat constitutional interpretation by Congress or the President as meaningless nonsense yet treat the Court’s word on constitutional meaning as gospel.
No doubt this ship has sailed — there is little chance that any limits will be placed on the federal courts to ensure that they return to the more sensible and limited definition of judicial review. But this was the benefit of Gingrich bringing this issue up. The fact that so many people reacted to Gingrich’s points like it was the craziest thing he’s ever said (which would say a lot) helps illustrate just how successfully the courts have transformed judicial review into the more expansive judicial supremacy. This, in turn, is another illustration of the poor health of modern American democracy.
David says
I’m honestly not convinced about all this. I certainly agree that the Court unquestionably has superiority to the states vis-a-vis the US Constitution, and that the case is less solid as against Congress and the President. But as you well know, there are numerous canons of construction that the Court trots out (when it’s convenient) when reviewing federal legislation, such as deference to acts of Congress, saving constructions, avoiding constitutional questions when possible, etc., all of which suggest some level of respect for the constitutional interpretations of the elected branches. Now, does the Court simply give those principles lip service and use them as cover for doing what it wants? Maybe. But that’s a function of who is sitting there, not how things are set up. If the Court has the power of judicial review in any meaningful form, it’s going to use it more or less aggressively depending on who is wearing the robes at any given moment.
All of which is to say that I don’t think much changed since Cooper. Perhaps that case stated things overly aggressively, as I’ve stated before – but, again, context matters, and the context there was a state defying the Supreme Court, which really cannot be tolerated and demanded a heavy-handed smackdown. In any event, probably the most consistently aggressive use of judicial review/supremacy/whatever by the Court against the elected branches came during the New Deal, well before Cooper was decided. So I’m really not sure what the evidence is that Cooper was some sort of game-changer.
SomervilleTom says
Cooper is being talked about because its one of those “code phrases”. That’s why Newt Gingrich talks about it, and that’s why Jeff Jacoby picks up the conversation. The right wing still resents the changes of the civil rights movement, and correctly sees US demographics shifting away from the white Christian population that has called the shots for so long. The excuse offered (Roe v Wade and related decisions) provides a pretext to remind the racist right-wing base of their unhappiness about desegregation and the Court’s role in it.
In my view, Mr. Jacoby is simply playing his part in right-wing race-baiting. Nothing more, nothing less.
farnkoff says
The President and Congress interpreting the Constitution hasn’t worked out too well elther. You really think a majority of Congressmen oppose Citizen United? They’re probably loving all that corporate cheese rolling in. We might have had some crummy justices lately, but I still think it’s safest to give the judiciary the last word on the Constitution before letting another rogue president take us all the way to dictatorship. If one is concerned with protecting the Constitution, I don’t think it would help to remove one of the checks in our system of checks and balances.
hoyapaul says
Historically, the idea that the federal courts protect rights better than Congress or the Executive simply does not bear out. It’s certainly true that Congress and the President are far from perfect on this score, but the Court does not exactly have a sterling record on rights-protection even when the other branches overreach (such as Korematsu).
A much more common scenario throughout much of the 20th century has involved Congress enacting rights-expanding statutes (either civil rights or economic rights) and the courts striking them down or narrowing them through statutory (mis)interpretation.
If one is concerned with protecting the Constitution, the historical record hardly gives an advantage to the courts. If one is concerned with protecting democratic governance, the unelected federal courts start looking even worse.
farnkoff says
You’d give protection of freedom of speech over to the Tea Party? To Obama? A terrible idea. There would be no recourse at all if the Tea Party and/or Obama set about banning “speech and/or written communications that criticize or cast aspersions on the character, qualifications, decisions, actions, etc. of current elected or appointed federal officials, as such words and writing tend to foment civil disorder and make America less safe.” Such a law would almost certainly struck down even by this current, corporatist Supreme Court. You’d give Bush, Obama, or the next jerkoff to occupy the oval office the ability to arrest people by executive order? Imprison them for life? Without judicial supremacy what recourse would there be? Wait four years for the next election, and hope somebody decent gets in this time?
Madness.
hoyapaul says
Sure there is. They’re called elections.
Also, it’s interesting that you think that virtually every other industrialized nation lives in a state of “madness” in which it is not the courts protecting free speech rights. I’m not sure why judicial supremacy is so indispensable to democracy when the United States is the only one with it.
centralmassdad says
doesn’t have those rights.
Which is why Austria is prosecuting a woman for “denigrating religious belief” by advocating against radical Islam.
And why Australia’s government introduced a sedition law.
And South Korea bans political speech in the months prior to an election.
And why France enacted a criminal prohibition for “offending the dignity of the republic”— in 2003. And why France criminalizes “promoting drug use” and imposes fines on its media under that provision for articles criticising French drug policy.
And why Germany criminalizes insults and various forms of hate speech.
And why Greece criminalizes insulting the President of Greece, and tried to use this to crack down on financial analysis of its public debt.
And why the Netherlands is considering expanding its blasphemy laws to include all religions and other philosophies, prohibiting criticism of that small subset of ideas and institutions.
hoyapaul says
I don’t see how most of the varied and interesting examples you bring up here differ much from laws existing and/or proposed in the US. The US has its own oddities (e.g., strict limitations on “obscenity”) that are a reflection of American social mores. Frequently, the courts are little protection against such free speech “violations” by the political branches. In other cases, the courts strike down legislation in a highly contested area (Citizens United, for example) where it is not clear whether the underlying statute restricts or expands free speech rights. (Indeed, this was what was contested in the campaign finance debate — whether free speech is actually expanded by prohibiting the wealthy from completely dominating political discourse). I’m not sure what the value-added is to judicial supremacy in such situations.
In other cases, you could make a plausible argument that the Court did in fact “better” protect rights against actions by the political branches. But I’ve seen little evidence to suggest that such interventions are so frequently the “correct” interventions that it entitled judicial interpretation to complete and permanent deference. They’ve gotten plenty right and plenty wrong over the years — just like Congress and the President.
Anyway, to return to your point, some of your examples are unlikely to occur in the modern US because of the political blow-back faced by anyone proposing them (criminalizing insulting the President, for example). The social expectation that we should be allowed to criticize the President is itself enough of a protection of that right. If things got so bad that such a law was plausible and supported by a significant majority in the US, then the courts would likely defer to the political branches anyway (consider, in a different context, Korematsu).
The practice of the federal courts suggest that, far from being counter-majoritarian, they more frequently simply echo the political branches when we need counter-majoritarianism the most (i.e. in times of emergency) and more frequently veto the political branches when such intervention is least needed (intervening in highly contested political debates where the nature of the right at issue is far from clear). That’s hardly an argument for maintaining the fiction of judicial supremacy.
centralmassdad says
but I have left my house since 9/11/2001, and would prefer that my rights be protected by something with a bit more teeth than “social expectations” which can change on a dime. Even as it is, judicial restraints on Congressional overreaching during the last few years has been inadequate at best, and you want to remove even that, so that our rights are established solely by politicians acting in a moment of crisis, which is to say a fully bloomed police state.
Honestly, much of your argument seems to be a mirror of the nonsensical conservative criticism of “judicial activism”: those damn courts failed to act precisely as I would were I the Grand Poobah of All Creation, and so must be fundamentally flawed…
hoyapaul says
Most of the conservative criticism of “judicial activism” is indeed nonsense, but this is an issue to which I’ve devoted a lot of time — I’d hope to think that I’m not in the same category as those with whom you’ve noted (that hardly says that I’m right about any of this, of course, but most of the “judicial activism” nonsense really is partisan nonsense made by people who haven’t thought about these issues for more than a 10-second sound bite).
Anyway, I’ll ask three follow-on questions: (1) Do you think the courts are all that stand between us and a police state? (2) Do you believe modern-day England is a “fully bloomed police state” after 7/7? (3) Do you believe America was a police state for the first 80 or so years of its existence?
centralmassdad says
The separation of powers is all that stands between us and a police state.
My family is Irish immigrants, after a time in Liverpool. There are few individual civil rights that the English government is bound to respect; I believe that England has been far closer to a police state than you are prepared to acknowledge for most of the 20th century– and certainly since 1969– if one happened to be Irish and Catholic. Twenty years ago, in the wake of the Guildford Pub bombing prosecutions, I recall thinking “Thank God we are in America, where people have more rights.”
It its a tragic development of the last decade that we have moved closer to the abusive British anti-terrorism laws of the 1970s, rather than vice versa. This is the most damaging legacy of the 9/11 attacks by far. The fact that we did not slip all the way is thanks to judicial restraint on a hysterical Congress and executive. Removing that restraint would have been, as the doctors say, contra-indicated.
America has only had a super-powerful national government for the last 80 years or so; before that, things varied. For blacks in Mississippi? A police state at best. For recent immigrants? Closer call, but not a very good situation. The change for the better is almost entirely attributable to judicial action enforcing civil liberties.
hoyapaul says
of a “fully bloomed police state.” I have in mind something like Nazi Germany, not modern-day England. For all of England’s flaws, the comparison is not even close.
I’d be interested to know the basis for this statement. Even Brown v. Board, as I noted earlier, did nothing for blacks living under Jim Crow until the Civil Rights Act of 1964 actually began the implementation of desegregation. The Civil Rights Act was, of course, an act of Congress. As was the Voting Rights Act of 1965. (And as were the civil rights acts passed in the Reconstruction Congress that the Supreme Court struck down as unconstitutional in the late 19th century.) Other examples exist in different contexts (as when Congress enacted legislation to allow women to practice law before the Supreme Court after the Court’s rights-limiting decision in Bradwell v. State).
The point is that on both constitutional and statutory matters, Congress has expanded rights at least as often as the Court. Given how much the Court has stood in the way of attempts to better the lives of both minorities and the broader populace (the Court’s early civil rights decisions, striking down antitrust statutes, striking down New Deal statutes and legislation aiming to expand economic rights, striking down attempts to improve the political system, etc.), I don’t see how the Court has on balance created a “change for the better” at all.
centralmassdad says
I said police state, not totalitarian state.
In much of Europe, there are no “rights” only privileges that the government may choose to withdraw, as the UK government most certainly did in its attempt to confront Republican terrorism during the 1970s. If your rights are protected only by social convention, you are a subject, not a citizen.
I actually think the source of our differences is a distinction that I draw that I believe you do not: I believe that “civil rights” are a fairly limited subset of rights directly related to a citizens relationships with government, and are FAR more important than the variety of statutory rights– employment discrimination, “economic rights” etc. about which you complain of inadequate judicial enthusiasm.
hoyapaul says
I think you are right about our differences on the latter point.
However, I would be interested in hearing why you think it is so important for the courts to reject consideration of constitutional interpretation by the other branches. The greater danger to civil rights as you define them has come from the states, not the federal government. The courts have historically either been ineffective or actively hostile to congressional efforts to secure civil rights. Plus, the areas where the Court has been fairly active in protecting free speech against actions of Congress do not exactly rise to the level of importance implicit in your definition of civil rights and liberties (striking down congressional attempts to limit child pornography, for example).
I simply do not see any basis for the claim that the “change for the better” in advancing the “civil rights” you identify is “almost entirely attributable” to judicial action. The federal courts’ role has been marginal at best on this score, if not actually counter-productive.
David says
that the vast majority of Americans think it should be changed, it’s not really that hard to amend the Constitution. All you need is 2/3 of each chamber of Congress, and 3/4 of the state legislatures. You don’t even need the president, or the people in an election. If a decision is that blindingly wrong, it shouldn’t be that hard to fix.
Oh, what’s that you say? It turns out to be really hard to get 2/3 of each house of Congress to go along with anything? Well, maybe that suggests that the American people (at least as represented in Congress) aren’t quite so united on these things.
In any event, there’s a very simple fix for this: a straightforward amendment to Article III would take care of it. You just have to come up with an alternative. And there’s the rub, I suppose – the only thing that seems worse than judicial supremacy is all the alternatives.
Incidentally, I find the jawing about Cooper v. Aaron (mentioned in Jacoby’s column as an example of what’s gone wrong) to be bizarre and off-topic. That case concerned the question whether the US Supreme Court has the authority to interpret the Constitution over the objection of state governments. If the states can interpret the US Constitution as they like, then there is little left of the union. There may be a worthy debate to be had over judicial supremacy when it comes to the federal courts vs. Congress and the President; there is surely none with respect to the states.
hoyapaul says
Rarely do I disagree with David all that often, but I diametrically disagree with his comments here.
On the first point, of course it is extremely hard to amend the Constitution. That we’ve had only 17 amendments since the Bill of Rights despite massive societal and political change is testament to that. Clearly, the massive difficulties of the amendment process has meant that significant constitutional change doesn’t just happen with formal Article V amendment. Indeed, when the Court has been blindingly wrong in the past, it is not always overturned by formal amendment (say, the entire New Deal and the modern administrative state). And I’m not sure why you would think that the only worry is when the Court is “blindingly” wrong. They can also be wrong on seemingly more obscure things and still cause a lot of problems. It’s unclear what you think the value-added of the courts are here.
I don’t think the reference to Cooper v. Aaron is off-point, given that this remains the most expansive statement of judicial supremacy that the Court has produced (and one that the federal courts keep referencing in cases involving both state AND federal statutes). If the courts simply limited their claims of judicial supremacy to the states, I could live with that. But I still see no basis for the courts to even have the power to declare federal laws unconstitutional. Having the courts as a unifying institution controlling the states has a theoretical justification; striking down the actions of the duly elected House, Senate, and President has much less of one. And, as I’ve noted earlier, when the courts do strike down federal statutes, it typically benefits conservatives, not progressives.
Finally, I find quite strange the statement that “the only thing that seems worse than judicial supremacy is all the alternatives.” Every other industrialized nation seems to do just find without judicial supremacy — or even the ability of the courts to check the elected branches at all. Unless you think that (for example) England is a dictatorial hellhole compared to the U.S., I’m not sure why you think the courts are so necessary to preserve rights.
JimC says
It sounds like a new riff on the old activist judge argument to me. I don’t think judicial review equals final authority.
I also thought the justices did take an oath to protect the Constitution. They don’t?
David says
nt
petr says
I don’t think this is the case. The Court “makes” nothing.
The court has a review of laws the Congress makes as a result of petition from various parties, including citizens and state governments. Suggesting, as Gingrich does, that the Court acts in a vacuum elides a very crucial part of any “activism”.
Here’s the basic sequence:
— Congress makes a law.
— Somebody complains about that law
— The courts interpret if the complaint is valid.
Gingrich would rather that the 500 or so members of the Legislative branch are the sole makers AND ARBITERS of the law without the messiness of a court arbitration IN RESPONSE TO CITIZENRY complaints. In short Gingrich, and Jacoby, wishes that the rabble would have the decency to STFU and the good graces to simply do what it is they are told to do.
In many ways the Court system (not just the Supreme Court…) experiences the most day-to-day, and effectual, interaction between the citizenry and the government as Congress and the Presidency are only required to interact with citizens at election time: all other times they could, under color of the constitution, wholly ignore the citizenry; while it may be political suicide, nothing in the constitution compels the Legislative and Executive branch to take the least notice of the electorate outside of the actual election cycle. It is the courts who most interact with honest citizenry (meaning that the executive branch deals most with the dishonest citizenry in terms of the justice department that interacts with criminals) and that is the color of any activism that occurs. The ‘activism’ you see, is not the courts but comes from the third parties who petition the courts. Or, put another way, you will be very hard pressed to find a conservative, any conservative, who made similar arguments prior to “Brown v Board of Education”
Which is just to say, as has been said before and doubtless will be said again, Gingrich is really upset that poor and minorities can find remedies through the court that they can’t find anywhere else.
A complaint can be articulated that the powers that be can, and do, game the court system to their advantage. But, again, that just damns Gingrich et al to an even greater degree as once downtrodden minorities, ethnicities and social classes gain a greater foothold amongst the “powers-that-be” they gain a correspondingly greater impact in the system.
David says
IMHO, in this very good comment is that in theory, the legislative and executive branches are more “accountable” to the people than the judicial branch. In practice, however, petr’s argument that average folks are more likely to given a full hearing at their local courthouse than their Congressman’s district office has some force.
hoyapaul says
I find this to be a strange argument. First, you seem to be claiming that it is the federal courts (!) that interact the most with “regular people.” Even putting aside the difficulties of your claim that Congress and the President interact with citizenry “only” during election time (since election time is all the time, doesn’t that complicate your point?), it is almost bizarre to claim that the courts of all institutions are the most attuned to regular people. These are the institutions that are free from election, require a highly trained (and generally wealthy) class of people to make arguments using a rarefied dialogue (i.e. lawyers), and whose decision-making processes remain not just confusing but largely out-of-sight to everyday people. The courts are unquestionably the furthest removed from the citizenry. (Indeed, if you want the branch of the federal government that unquestionably interacts the most with the citizenry, it would be an arm of the executive — namely, the bureaucracy).
The claim that the courts are more friendly to minorities than Congress simply is not borne out by the historical evidence. Even Brown v. Board of Education — the inevitable case invoked by defenders of this claim — meant very little in terms of actual desegregation until Congress acted with the Civil Rights Act of 1964 (and Voting Rights Act of 1965). The fact is that Congress has often stood up for minorities and the “little guy” while the courts have stood in the way of progress.
This doesn’t change the very legitimate concern that the entire federal government too frequently serves the interests of the rich. But for the purposes of comparing federal institutions to one another, there is little basis for concluding that the federal courts are somehow more attuned to the citizenry or more likely to stand up for the poor and minorities than are the other branches. The historical record simply does not bear this out.
petr says
To a degree, yes.
My point is that Congress and the President are only required to interact at election time… at all other times they don’t have to take note of the citizenry in the slightest, with the sole exception of the justice department whose job it is to keep the unruly citizenry at bay. Nothing PROHIBITS the Congress and POTUS from being attuned to the citizens, but nothing requires it either. Obviously, many politicians DO interact with the citizenry, but the history hasn’t been one of equal coverage and so many politicians are only attuned to the faction that most reflects their ideology. However, the courts, by law, operate under strict cover of “equal protection” and so MUST interact.
Yet there it is. Certainly, in our extraordinarily polarized political environment those politicos who chose to attune to regular people really only attune to those most aligned to their ideology.
Those things, (highly-trained, rarefied language, closed decisions), are not “required” and are really a result of codification of laws: a ‘rarified language’ isn’t a simple cipher but rather a clear imposition of orderly and logical thinking; “highly trained” follows as a direct result of rarified language; and closed decisions aren’t really closed (you can find information if you look) so the fact that nobody spoon feeds it to you isn’t indicative of a cover-up, if that is what you are concerned about.
By definition, a court system operating under the umbrella of ‘equal protection’ is going to be “more friendly” than any strictly political system; in practice the present highly polarized, largely white and male, political system is disastrously unfriendly to minorities.
Actually, the congress had to be strong-armed by LBJ, himself strong-armed by the citizenry protesting (thanks you Rev Dr Martin Luther King Jr), into (finally) accepting the Civil Rights act after several abortive prior attempts at passage. One of the arrows in the citizenry’s quiver in this battle was the courts insistence on equal protection (itself a result of citizens pressure, thank you Mister Thurgood Marshall.)
Congress and the President does not have to respond directly or be attuned to the citizenry but, via the constitution they must be attuned to the courts, which itself is attuned to the citizenry.
hoyapaul says
but I find little of it convincing.
I agree with this as far as it goes, but there’s a strong encouragement to be attuned to the citizens — elections. For all the flaws with modern elections, the President/Congress cannot ignore the public entirely.
I’m not quite sure what you mean here. What is “strict cover of equal protection”? If the courts are the institution who defines this, then they have the discretion to decide who can use it. Indeed, this is precisely what they have done to limit access to the courts (as when they largely denied access to the courts to “equal protection” arguments for blacks in the decades after the 14th Amendment — itself a congressional effort, I might add — and to open it to conservative business interests, as they did through the early 20th century and more recently, making EP and due process arguments available to combat business regulation).
Even if this is true, I’m not sure why this doesn’t apply with equal force to judges.
Again, I’m not sure what this means. How is “rarified language” a “clear imposition of orderly and logical thinking”? Does “orderly and logical thinking” require Latin phrases and complicated laywerly jargon? I don’t think so. It’s true that judges and justices write public opinions, but do you think most people can understand a typical opinion? Certainly not — most opinions nowadays are indecipherable to most people.
Plus, I find it ironic that at a time in which most progressives argue that “sunlight is the best disinfectant” when it comes to legislatures (and encourage open-meeting laws and such), they champion the Supreme Court — the very institution that refuses as much as a camera in the courtroom and which holds crucial meetings in secret not even open to their clerks.
Why? Would you say that the federal courts were friendly to minorities in the 19th century? They were operating under the “umbrella of equal protection” then as well.
Actually, the 88th and 89th Congresses hardly had to be “strong-armed” into activism. Democrats had massive majorities at the time, and liberals had simply (and finally) cracked the conservativsm within the Democratic Party itself. It’s not like Congress was an unwilling participant — the 89th Congress in particular was perhaps the most activist (and progressive) of all time.
I don’t think this holds up. First off, Brown v. Board was in 1954. If it really mattered that much, why didn’t real change happen until over a decade later? Plus, the courts hardly “insisted” on Equal Protection. After Brown v. Board, the Supreme Court immediately backed away from insisting on quick implementation and the federal courts as a whole did little about desegregation until after passage of the Civil Rights Act of 1964.
In short, it’s a interesting and popular theory that the role of the courts is to protect rights against those nasty political branches, but it remains just that — a theory. In practice, the historical evidence suggests that this theory rarely works.
Christopher says
…this goes in cycles. Certainly I don’t have to remind you of times that liberals were quite happy to let the Court have the final say. Brown v. Board of Ed; Loving v. Virginia; Roe v. Wade; or even the Goodridge decision at the state level. Personally, I’m with John Marshall who famously said that it is emphatically the province and duty of the judicial department to say what the law is. They takes oaths too, and while the President and Congress should consider their ideas of constitutionality when considering legislation, it is the courts that decide ultimately whether they can be enforced. Any judge who takes the attitude of saying well, that’s the law regardless of the constitution is in violation of his oath. Article VI clearly says that the Constitution is supreme to statute and judges shall be bound thereby. They are in the best position to defend the Constitution even against popular will when necessary. Yes, amending is hard, but sometimes necessary.