Men in Black: The Supreme Court Run Amok
Mark "The Great One" Levin has recently penned a very interesting book called Men In Black: How the Supreme Court Is Destroying America. It's particularly interesting in the wake of the Supreme Court decision earlier this week that declared capital punishment for "juveniles" unconstitutional. But let's start from the beginning.
Levin's main thesis is that the Supreme Court has amassed a great deal of power, more than the Framers had intended them to have, and have done so in a grossly unconstitutional fashion starting with Marbury v. Madison. In that 1803 case, Chief Justice John Marshall invented (according to Levin) the idea of judicial review by asserting that the Court would decide what is or is not constitutional. On its face, judicial review may sound like a dandy thing, but when you look behind the curtain you see it is often abused as a way for justices to veto the constitutional actions and decisions of the other two branches of our government. Levin argues there was no legitimate reason for Marshall to make that assertion and no Constitutional provision granting this far-reaching power to the Court. These days it's gussied up by legal scholars, but in fact it was a power grab by the then dying Federalist Party. Before the decision, the Court's power was limited...justices would go to various circuits and hear cases, and their influence was pretty limited when compared to today.
But if Marbury v. Madison opened the door to judicial abuse, it was FDR and the New Deal which took it to all new levels in the 1930s. Recall from history class that the Court overturned many of FDRs programs on the basis that they were regulating economic activity that had nothing to do with interstate commerce. At that point FDR issued his famous threat to pack the Court. We know he didn't succeed in that, but during FDR's long time in office many of those justices retired or died...leaving FDR free to appoint justices who WOULD uphold those programs. The result now is that the federal government can regulate basically any kind of economic activity that it wants to. And the Warren Court took it even further, issuing their dictats on topics from contraceptive use to the Miranda warning. And as we saw as recently as this week, this current Court is going even further. As a fun exercise, try to think of one thing that is NOT subject to judicial review. I bet you can't.
None of this is helped by the other two branches of government which have apparently surrendered their authority to the Court. There are checks and balances written into the Constitution which are supposed to prevent this sort of thing. For instance, Congress may impeach judges who are acting improperly, but the chances of that happening are on a par with Michael Moore passing up a coupon for a free Chipotle burrito. In the current lexicon, an impeachable offense has come to mean a criminal offense, which is unfortunate. The other check is the authority of Congress to determine the jurisdiction of the courts. That's right, Congress can deny the Court the ability to rule on certain issues. That's something Congress has neglected for too long.
Levin also offers a few other suggestions in his book.
For instance, he suggests limiting judges and justices to 12 year terms instead of life terms (requiring a Constitutional amendment, I think). The idea seems reasonable...if judges are going to serve as de facto legislators, then there is no compelling reason to grant them the power for their entire life. Originally, the Framers were concerned that the judiciary would be overwhelmed by political pressure from the other two branches, which is where the lifetime appointment came from. But now the problem is reversed...we have nine unaccountable people exercising unchecked and nearly unlimited power, who serve for life. The thing is, we are supposed to have representative government, and are supposed to bow to the wisdom of the people. It's an either/or proposition. If we are going to respect the idea of representative government, then we have to actually respect it.
So following that thought is Levin's idea that Congress have the power to veto a Court decision. And it makes sense...if Congress can override a Presidential veto, they certainly should be able to set similar limits on judicial power run amok. We've had maybe 100 justices in our history, and they haven't all been paragons of virtue. Yes, we've had criminals. Yes, we've had racists (paging Hugo Black...). Yes, we've had geniuses and average joes, clear thinkers and some with mental issues. But at the end of the day, we're talking about nine people who, in the final analysis, are little different from you and me. They aren't perfect just because they wear a black robe to work. So the question becomes...are we going to allow nine people to make heavy impact decisions about our lives? Are we going to respect the idea of representative government, or aren't we?
So far, it doesn't seem we have to will to do so, and the judiciary has taken notice. See, part of the function of the judiciary is to respect We The People. But now judges spend time looking for ways to impose their will on us. How else to explain the Court's sudden love affair with international law? In the final analysis, the decision earlier this week basically said executing juveniles is bad because other countries don't do it. Well, doesn't that beg the question....what ELSE do we do that other countries don't like...? I have a safe at home filled with a few items Cuba would prefer citizens don't own, for example. Every justice on that court took an oath to uphold the US Constitution, and yet here a majority of them are relying on decisions made by people who Americans have no involvement with. I hate Roe v. Wade because it took portions of the Constitution and turned them upside down (something for which Harry Blackmun received fan mail...FAN MAIL...). But this is an entirely new thing, and exponentially worse.
Levin paints a bleak picture of things, but I agree with him that there's a way out. It involves We The People reasserting our authority over a runaway Court. Our Constitution creates a framework for the judiciary, but Congress has the authority to fill in the blanks...an authority they've largely ceded. The first step therefore becomes getting our elected representatives to take their responsibility seriously and protect us all from judicial overreach. They have to set limits on the jurisdiction of the Court. The structure of the lower courts can stand to be reviewed, Congress should be given the power to veto Court decisions, and in my opinion the granting of lifetime terms can also stand a little "Congressional review." We need to get back to the idea of representative government, so if a Court decision comes forth that is so repugnant to us there is recourse, instead of the dictat of five lawyers wearing black robes. The bottom line is there's an imbalance that exists between the Court and the other two branches of government, and it needs to be rectified.
Posted by John Tant at March 4, 2005 07:21 AM
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|# March 7th, 2005 6:48 PM Converted_Comment|
Great post, John. I agree that the courts, and especially the Supreme Court, have too much power. If the justices did follow their oaths to uphold the Constitution, maybe none of this would be a problem, which means that Congress needs to work harder to confirm judges that will follow that oath.
With all the new cries of McCarthyism and fascism, I think that if Congress did something to restrict the power of the courts, there would be a gigantic outcry amplified by the media, whether or not it's the right thing to do.
Given that President Bush's latest attempt to reign in courts was to change the Constitution - the ultimate smackdown on judges - he must think that none of these other options are very viable.
|# March 7th, 2005 6:48 PM Converted_Comment|
great post. i'd only point out that congress does have the power to override the court - they can do so by passing a constitutional amendment.
when i read roper last week, i didn't get the impression that it was based on international law. rather, it seemed to be that kennedy said "5 states have changed their laws w/ respect to this, so that evidences a change in societal norms," and then later threw the international law stuff in to "support" his decision on moral grounds but didnt rely on it. my complaint at the time was "why even include it?" (i was arguing on IM while reading, with a person who knows how i feel about citing to intl law.) my quick reading of the case may have missed something, b/c i've since heard law professors criticizing the decision for "relying" on intl law. maybe he can be said to have relied, maybe not - i'm just saying, that wasn't how i read it. in any event, i didnt think it was relevant and shouldnt have been included.
interestingly, i saw liberal legal scholars on tv & on radio all taking the same approach: they agreed with the outcome, but not with the reasoning, if the decision can be said to be reasoned at all. at least one prof, johnathon turley on fox news, cautioned liberals from being too excited about the decision, said it was bad law, and bad precedent. he questioned if the court was becoming "untethered" from the populace and from reality.
but his questions raise what i think is a counterpoint to your argument, and that is that there is a great danger in letting uneducated citizens have too much say in judicial appointments, either directly or indirectly.
proponents of abortion cheered roe v. wade b/c they liked the outcome. opponents jeered it b/c they didn't like the outcome. i'm sure that 90% of the people that have an opinion on the matter couldn't tell you what constitutional provisions were implicated in the decision, and whether they thought that the rights cited in roe are acutal constitutional rights.
why should people that could not care less about interpreting the constitution correctly have any say whatsoever? taking the current lifetime appointment system and replacing it with another, say a 12-year cycle, would turn court appointments into a political playing card. i sure appointment allows a candidate to say "elect me, and i'll get roe overturned, i guarantee it. and then re-elect me, and i'll get X ruled unconstitutional."
judicial activism is a problem, to be sure. but i'm not sure that i see any of the alternatives to lifetime appointments as being any more fair or effective.
|# March 7th, 2005 6:48 PM Converted_Comment|
James, interesting thoughts. A few of my own, in turn:
-It's true that Congress can pass a Constitutional Amendment overriding a Court decision, but in my mind that suffers from two flaws. The first being that the hypothetical Amendment only addresses future decisions by the Court, and does nothing in the here and now. That may or may not be relevant depending on the case's circumstances.
Second, the Amendment process requires a majority of the state legislatures to sign on, something that is (and rightfully should be) difficult. What Levin had in mind is something that would stop an errant Court in its tracks. For example, you mention Roe v. Wade. Let's assume for the sake of argument that the decision went wildly against the sensibilities of the country. By the time a Constitutional Amendment could be passed (if at all), how many abortions would be performed? And using the Amendment process as a way to check the Court seems a little ham handed to me. Amending the Constitution should be hard, else we end up with very odd documents like, oh, Virginia's constitution.
-I have to say that, gut level, I sympathize with your statement:
"...[T]here is a great danger in letting uneducated citizens have too much say in judicial appointments, either directly or indirectly. "
I'm on record as saying I don't understand what the allure is of total and complete voter participation, as if the mere act of voting is somehow imbued with inviolable mystic morality. But I'd say that your statement is more of an argument against uneducated voting instead of having The People enjoy a more direct voice in the judiciary. But at a certain level, don't we have to cede to The People?
I think we're at a crossroads with this issue. Are we going to honor the idea of representative government, or aren't we? If we're going to let five lawyers exercise what amounts to unlimited veto power over the Constitutional actions carried out by our representatives, then why bother with representative government at all?
-Speaking to judicial terms, I think the process is already imbued with political machinations, only right now it's behind closed doors. For example, check out the inane questions the Judiciary Committee gives to nominees. In fact, before the term started we had Arlen Specter proclaim what a judge had to promise before he'd get a fair shake in front of the committee. At least a judge promising something to the electorate is open and honest, and at least he'd be subject to some kind of accountability.
My take on the term revision would be that judges not stand for general election, but would instead continue to be nominated and confirmed as they are now. The difference would be when a judge starts to go crackers (yes, I'm thinking of Blackmun here) there's at least some recourse in the system.
-On a closing note, I do want to be charitable and note that the "cruel and unusual punishment" phrasing in the Constitution does lend itself to widely varying interpretations. Does it mean "cruel and unusual" as of 1789? Back then, locking someone outside in stocks wasn't that big of a deal, but I personally think it's a Bad Thing(tm) and I think most people agree. So is it one of those things that evolve over time, and we have to continually examine it? There's a reasonable argument that it is. My main beef is that international law and opinion should not enter into it at any level, even if it's supporting the decision of five states to change the law. Aren't the norms supposed to be American norms, and not French? See, the federalist in me is fine with Georgia being Georgia, but let's let Montana have the same privilege. I think this decision threw that perspective out the window, and I think that's unfortunate.
|# April 2nd, 2005 4:19 AM jimmydell|
|I am very confused. I am a law student and my understanding is that Levin's book is a joke among anybody who has any knowledge of constitutional law. However, this point struck me as so absurd that I must be missing something--Levin cites the Korematsu decision of the court, upholding FDR's internment of Japanese-Americans as judicial activism. Now help me out here--isn't judicial activism when the courts try to override the policy decisions of the other branches of government? I'm Canadian, so maybe I'm just confused here, but isn't the internment issue the argument FOR activist judges, ie. judges willing to stand up to the other branches when they are acting unconstitutionally? What am I missing? |
|# April 2nd, 2005 8:49 AM BrianH|
I think you're confusing what an "activist judge" is. The common definition of an activist judge is one who ignores current law and the constitution in order to impose a "progressive" policy on the people. The judge is in effect writing a new law. That is NOT the job of the judicial branch in this country.
The internment of American CITIZENS (regardless of their heritage) for no reason is against our constitution. When the court ignored the constitution to allow the internment of Americans with Japanese heritage, it was judicial activism.
We conservatives want judges who will interpret laws and government actions using the constitution as their ultimate guidelines. We DON'T want judges who use prevailing law in Europe (or their own political agenda) as their guide. If our laws or constitution need to change to conform to new public or international standards, we have the legislature to rewrite laws and a process to amend the contitution. It is wrong for a few handfuls of judges to both rewrite the laws and pass judgement over them.