How SCOTUS became dangerous
Here’s an excellent article on the history of the Supreme Court, written by Roger Kimball. Highly recommended.
An excerpt:
Responding to [Alexander] Hamilton [who felt the Supreme Court would be the “least dangerous” branch of government], the anti-federalist writer “Brutus” warned that the Constitution did not provide an effective mechanism for reining in judicial arrogance:
There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.
The place allocated to the judiciary by the Founders sought to circumvent the evils that “Brutus” envisioned. And had the judiciary kept within those bounds, all might have proceeded as the Founders intended. But we have had some 250 years of hermeneutical ingenuity expended on twisting the Constitution to serve partisan ends. The co-optation and perversion of the judiciary into a policymaking organ furthering a leftist agenda has been part of that process.
I will add that of course an institution will try to take on more power over time. The Supreme Court is certainly no exception. However, the justices of the Court are not actually completely independent of the executive or of the legislature, at least in theory—that is, prior to their taking office. After all, the executive appoints them and the Senate has to approve them. But after that, they are home free—unless they meet the standard for impeachment, which is a very high bar indeed.
Justice Kennedy, whose imminent retirement has sparked a lot of the current brouhaha about SCOTUS appointments, was one of the most powerful people in the US for many years, because he was the swing vote on the Court. And yet he was unelected. It was not a good situation, but that was the reality.
I like Glenn Reynold’s (Instantpundit’s) suggestion to add an SC Justice selected by each state, which would dilute the impact of any particular Justice.
So how to rein in SCOTUS? Perhaps an amendment similar to this:
Federal judges, including those serving on the Supreme Court, may be impeached by Congress for high crimes, misdemeanors, or failure to render opinions which support the original text of this Constitution. The process shall be the same as the process for impeaching the President except that when the Chief Justice is being tried, the Vice-President shall preside.
Neo — Excellent article, thanks for recommending it. Possible reversal of Roe v. Wade is just the superficial reason for the left’s hysteria, since that would just send the matter back to the states. Planned Parenthood could use its freed-up money from clinics in the Red states to provide air fare and lodging for women who would fly to the Blue states where abortion will doubtless remain legal.
The underlying reason is the loss of the extra-judicial, oligarchical super-legislature that the Supreme Court has become. Since they can’t win in most states, they must keep the rule of “nine unelected lawyers in black robes” in place.
They’re not home free at all. It’s just that Congress and the president have never had the imagination and the stones to rein in the appellate judiciary. The following measures can be undertaken
1. Withdraw the U.S. Marshall service from select jurisdiction.
2. Refusal by the president to jail targets of a court for contempt.
3. Legislation which reduces the geographic jurisdiction of a court to nothing. The 9th circuit consists of one square yard in the middle of Sunset Blvd.
4. Stripping courts of any appropriation for equipment or staffing.
5. Legislation requiring judges be paid in potatoes – once a year. Just dump that truck on Judge Ginsburg’s driveway in Georgetown.
The strange thing about all this is that I was certain that SCOTUS would decide—would have to decide—to reign in the Obama administration, which in my view, was so clearly trampling the Constitution (with great panache, in fact)
Certain that SCOTUS would understand that it was the LAST line of defense against an administration that was running amok.
Well, was I ever wrong about that….
Could it be that Kennedy (or Roberts) just couldn’t go against the grain?
Now, with Trump in the WH, is it possible that that they feel liberated? Feel that they can “let their free flag fly”?
Sounds pretty awful as a theory; but I wonder…
It can’t be easy for anyone, not even a SC justice, to stand athwart “the future” and say (with apologies), “Stop!”
(It must be said that the Democrats and A-Ts, generally, feel the same way but exactly in (“looking-glass”) reverse: that it’s up to SCOTUS to reign in Trump and his “nefarious” plans…which, given the fact that they don’t have too many cards to play in order to stop him, is why there are in veritable panic mode.)
The much maligned vote of Roberts upholding Obamacare was made, according to him, because he knew that overturning that piece of legislation constituted a policy making decision which should be left to the legislature. It was the same basic argument he used with his recent sales tax dissent:
A good reason to leave these matters to Congress is that legislators may more directly consider the competing interests at stake. Unlike this Court, Congress has the flexibility to address these questions in a wide variety of ways. As we have said in other dormant Commerce Clause cases, Congress “has the capacity to investigate and analyze facts beyond anything the Judiciary could match.”
https://supreme.justia.com/cases/federal/us/585/17-494/dissent6.html
The sales tax decision was especially wrong headed in my opinion. The result will be unending hardship for small businesses who sell across state lines. The conservative justices made a political decision because of who owns Amazon instead of leaving it to elected legislators. It is every bit as political as the same sex marriage case the liberals decided.
For all the hysteria surrounding SCOTUS appointments, with arguments made by conservatives that liberal justices legislate from the bench, here are two cases where the Chief Justice refused to go along with the conservatives and legislate from the bench, and in the process he becomes a turncoat. I would say he made the correct decision, if you are going to limit the power of unelected judges.
“Men In Black” by Mark Levin published 2006.
Men in Black: How the Supreme Court Is Destroying America Aug 1, 2006
https://www.amazon.com/s/ref=nb_sb_noss_2?url=search-alias%3Dstripbooks&field-keywords=Men+In+Black
Concise.
The next iteration of the English civil war will have to constrain the judiciary. It’s a difficult problem, not the least because the system will have to be modified in place. One hopes it can be solved without going the Charles I route.
One intermediate tactic might be to stop packing the court with Ivy grads. Some of the worst people attend Harvard and Yale, because it is the path to power via appointment.
That was predictable.
As US keeps (sadly) becoming more and more of a Latin-American country, the country faces common problems that have happened for years in Latin-America. One of them is judges placing politics over the rule of law.
Actually, Germanic and (specially) British system are quite loose ones, since they work on the basis of people having high standards. The moment people (judges included) don’t have those standards anymore, you need to start to limit their independence and keep them on short leash.
Of course, that easily slides into partially totalitarian regimes where judges are controlled by the government, which is a endemic problem in Latin-American countries. It’s quite a unstable system. When A society loses their standards, the price to pay is TERRIBLE.
@neoneocon:After all, the executive appoints them and the Senate has to approve them. But after that, they are home free
This is not actually true. Congress, under Article III, has the power to set limits to what the Supreme Court may hear:
…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.
They just don’t bother.
Another disturbing recent trend is District Courts issuing universal rulings affecting the complete government. Justice Thomas noticed this in his concurrence on the so-called travel ban case (read more starting at p. 47 at the link)
Mark Levin’s “The Liberty Amendments” was a good read. His proposal to rein in the judiciary is described here:
https://www.redstate.com/dhorowitz3/2013/08/13/mark-levins-liberty-amendments/
“The Judiciary was never meant to be an all-powerful institution in which five men in robes have the final say over every major policy battle in the country. In order to end judicial tyranny, Levin proposes limiting service to one 12-year term, and granting both Congress and the state legislatures the authority to overturn court decisions with the vote of three-fifths of both houses of Congress or state legislative bodies.”
—
I’m also happy to see so many people here spelling “rein” correctly, instead of using the homophone “reign”, which means something completely different. It’s gotten to the point where I see the incorrect version almost exclusively.
Let’s not get ahead of ourselves.
The left-leaning justices are noticeably more consistent in their leftism than the right-leaning justices are in their conservatism.
There are 2 justices on the court who’re 100% reliably right-leaning (Alito and Thomas). The next (Gorsuch) is too new to be certain, but he looks good so far; call him 90% reliably conservative. After that, we have Roberts, who has famously back-stabbed conservatives on a couple of important cases, but in other ways seems conservative. Call him 70% reliable.
The four leftist justices are all 100% reliable leftists. Without Anthony Kennedy, then, what do we have?
THE RIGHT HAS:
100% of Thomas
100% of Alito
90% of Gorsuch
70% of Roberts
THE LEFT HAS:
100% of Ginsburg
100% of Breyer
100% of Sotomayor
100% of Kagan
10% of Gorsuch
30% of Roberts
Thats 360% for the Right, 440% for the Left.
It’s currently a Left-Slanted Court, by an 80% gap.
And it already was a Left-Slanted Court when Kennedy — a 60%/40% weathercock of a man — was in there, too.
Now Trump gets to nominate a replacement for Kennedy, and his desire, it seems, is to get a 100% conservative in place.
But even if he does, that will give conservatives only a slight edge: It will be 460% for the Right, 440% for the Left.
And new Justices nominated by Republican presidents are notoriously apt to judge farther-to-the-left than initially expected.
Just ask Nixon, who put Stevens on the court. Or Reagan, who gave us O’Connor and Kennedy. Or Bush 41, who gave us Souter. Or Bush 43, who gave us Roberts.
The correct way to view a new Justice nominated by a Republican president, initially, is as a 75% conservative, 25% leftist. That accounts for the uncertainty. Then you adjust your percentage over time, as he/she proves more or less reliable. (Tracking a justice’s record within a five-year-scrolling window of time, weighting the most-important cases most-heavily, is a good approach.)
The safest bet for a new Justice nominated by a Democrat president, of course, is that he/she is a 100% reliable leftist.
TO SUM UP:
The court is currently left-of-center.
If Trump’s nominee is confirmed, time will tell whether the court swings right-of center.
But even a 100% reliable conservative will give the court only the narrowest glaze of a conservative majority.
And the safer bet is that we wind up with a perfectly-divided court, or possibly a slightly-narrowed leftist majority, because Roberts, Gorsuch, or the Unknown New Justice turn out not to be as-expected.
All this cataclysmic “Roe will be overturned!!!” discussion is mere Chicken-Little-ism from the Left, and from the Right, it’s like counting your chickens before you’re half-finished building a coop.
Talk to me again, when…
(a.) the nominee replacing Kennedy has proven themselves 80%+ reliably conservative over 5+ years of cases;
(b.) the next person to retire is a leftist justice; and,
(c.) the person replacing that leftist justice turns out to be 80%+ reliably conservative over 3+ years of cases.
THAT’S when it’ll be time to break out the champagne.
But just NOW, it’s too early to tell.
Neo-NeoCon: “After all, the executive appoints them and the Senate has to approve them. But after that, they are home free …”
Frederick: “This is not actually true. Congress, under Article III, has the power to set limits to what the Supreme Court may hear …”
Frederick, you are the first person I have encountered who *gets* the point. Most people — even those who loathe leftist judicial activism — bitterly resent having this truth spoken and will generally engage in illogic (including ad honinem non-arguments) in their resistence to grasping the truth.
Neo-NeoCon: “I will add that of course an institution will try to take on more power over time. The Supreme Court is certainly no exception. However, the justices of the Court are not actually completely independent of the executive or of the legislature, at least in theory—that is, prior to their taking office. After all, the executive appoints them and the Senate has to approve them. But after that, they are home free—unless they meet the standard for impeachment, which is a very high bar indeed.”
First — there is no such thing as The Supreme Court. The Constitution, Article III, says, “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, …”
NOTICE: Article III is *not* about the non-existent The Supreme Court; rather, it is about “The judicial Power of the United States”. The adjective ‘supreme’ in the term “one supreme Court” could as well be ‘superior’, for its function is to distinguish the single top-level court from whatever inferior courts that the Congress may choose to establish.
Second — as Frederick has already pointed out, the Constitution *explicitly* gives the Congress authority to set and regulate the jurisdiction of the federal courts … including, excepting certain limited jurisdiction spelled out in the document, that of the high court.
Third — the standard for impeachment (and removal) of judges is exactly and whatever the controlling legislative bodies want it to be. If the Congress were to impeach Ginsburg and remove her from office — as it should — for her betrayal of the office (*), no one has the authority to gainsay Congress on the matter.
(*) they are many, but in my opinion, one of the worst is her pronouncement that US justices ought to “consult” foreign law in imposing their wills upon the nation. The NYT from 2005 — https://www.nytimes.com/2005/04/02/politics/justice-ginsburg-backs-value-of-foreign-law.html