Finding the Right Cure for Judicial Supremacy
Ricochet listeners to Law Talk know that Richard Epstein and I finally agree on something—that Newt Gingrich's attack on the courts is misguided. In this week's National Review (or here at AEI, if you don't have a subscription to NR), I defend some of the tools that Gingrich proposes, but I criticize how he would use them and why. To me, the chief mistake is to try to change the direction of constitutional law by reforming the courts—this concedes that the courts are the final word on the Constitution. Instead, a President should criticize the idea of judicial supremacy—that the courts are the supreme interpreters of the Constitution—and return us to the more balanced approach favored by our Framers and our history. Each branch must interpret the Constitution when carrying out its own duties, and should not give up that authority to any one else. Just as the courts cannot enforce unconstitutional laws, Congress should not pass unconstitutional bills and Presidents should not sign them.
Diagnosing the courts' ills should not divide conservatives. Finding the right cure might. Gingrich proposed a number of possible remedies of varying soundness, including restricting the jurisdiction of federal courts, impeaching ideological judges, eliminating liberal courts such as the U.S. Court of Appeals for the Ninth Circuit (which covers the West Coast), and hauling judges before congressional hearings. The last is simply a bad idea: Gingrich would have federal marshals lay hands on federal judges, under the power of a subpoena, if they refused to show up before Congress. Anyone who recoiled at President Obama's clumsy partisan attack on the Supreme Court over a campaign-finance case during his 2010 State of the Union address should reject the proposal. Such hearings would be useless anyway—any judge worth his salt would merely spend the hearing reading his opinion out loud.
[...]
Borrowing from the wisdom of George Costanza, a Republican president should say to the courts: It's not you, it's me. Instead of tinkering with the judiciary, conservatives should seek to restore the role of the presidency by using its unique powers to define the Constitution. A Republican president, for example, could order prosecutors to stop enforcing unconstitutional laws that violate federalism, separation of powers, or individual rights. He could veto unconstitutional laws, instead of leaving the job up to the courts. He could place constitutionality on a par with cost-benefit analysis in issuing regulations or conducting foreign policy. He could nominate only judges who reject judicial supremacy and understand the courts' modest role vis-à-vis the political branches.
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Jan '11
Re: Finding the Right Cure for Judicial Supremacy
I am obviously missing something but I just don't see what the difference is between an executive branch official being called before Congress to answer questions regarding a decision and a judicial branch official doing the same.
Why the deference to one co-equal branch but not the other?
Dec '10
Re: Finding the Right Cure for Judicial Supremacy
Aren't we conservatives apoplectic over Obama doing about the same thing with DoMA? Are enforcement and defense of duly enacted laws so different as to warrant different different approaches when the executive believes them to be unconstitutional?
How else are federal judges held accountable to the people if not through their representatives? Impeachment? Would that not require the same circus in congress?
Aug '10
Re: Finding the Right Cure for Judicial Supremacy
Just throwing this out there for discussion/ridicule, but what about something like Canuckistan's Notwithstanding Clause, only with much stricter requirements.
For example, an amendment to the constitution that says something like:
So essentially, states would be able to ignore a supreme court decision for five years, if the state legislature can muster a unanimous (or supermajority) vote.
(This would differ from Canuckistan because we do not require a supermajority. The notwithstanding clause has only ever been used once, by Quebec to enact their French-language laws.)
Feb '11
Re: Finding the Right Cure for Judicial Supremacy
Klaatu: I am obviously missing something but I just don't see what the difference is between an executive branch official being called before Congress to answer questions regarding a decision and a judicial branch official doing the same.
Why the deference to one co-equal branch but not the other? · Jan 9 at 2:12pm
1. The judge already wrote a decision (generally too wordy and detailed) explaining his decision. The only purpose of a hearing would be to bully and grandstand. This can also be done with the executive, and I don't like it any better.
2. To the extent Congress delegated its authority to an agency (e.g., the ability to adopt regulations), it has a duty to exercise oversight over the use of the authority.
3. The Chief Justice does come before Congress regarding the general business of the judiciary, and Congress is entitled to ask all the questions it wants about how the courts are conducting their business. I'd even be happy to see Congressmen debate general constitutional issues with justices. But the Constitution does not give Congress any say in individual cases.
Jan '11
Re: Finding the Right Cure for Judicial Supremacy
ShellGamer
1. The judge already wrote a decision ... explaining his decision. The only purpose of a hearing would be to bully and grandstand. This can also be done with the executive...
2. To the extent Congress delegated its authority to an agency (e.g., the ability to adopt regulations), it has a duty to exercise oversight over the use of the authority.
3. The Chief Justice does come before Congress regarding the general business of the judiciary, and Congress is entitled to ask all the questions it wants about how the courts are conducting their business. I'd even be happy to see Congressmen debate general constitutional issues with justices. But the Constitution does not give Congress any say in individual cases.
1. I understand that the judge issues a written opinion but what is the problem with his answering questions regarding it and defending his reasoning in a public forum?
2. Congressional hearings extend beyond regulatory agencies. Cabinet secretaries and theater commanders are called before committees to explain executive policy decisions. Courts also act under congressional authorization.
3. The courts' jurisdiction is subject to "such Exceptions, and under such Regulations as the Congress shall make."
Oct '11
Re: Finding the Right Cure for Judicial Supremacy
In nineteen paragraphs, Yoo's article substantially agrees with Gingrich's recommendations and remarks regarding judicial overreach save one - he finds subjecting judges to the subpoena beyond the pale. Now, personally, I'm with Klaatu on this - if they can direct the marshals to lay hands on me, then my representatives can do the same to them, within the law. But that's a small matter - even to Yoo, as its proportional treatment in his article makes evident.
What's really notable here are the contortions some will perform just to have something, anything, negative to say about Gingrich. The tone and headline of Mr. Yoo's article and the first sentence of his post here belie a fundamental and substantial agreement with Gingrich's statements.
We should really nominate Gingrich, if only because he makes our establishment figures so darned uncomfortable, even (especially?) when they have to concede the quality of his arguments.
Oct '10
Re: Finding the Right Cure for Judicial Supremacy
How does this fit with the conservative agenda to overthrow Roe vs. Wade by appointing conservative judges? Judicial restraint is all very good, but we have to roll back previous bad cases first.
Mar '11
Re: Finding the Right Cure for Judicial Supremacy
In nineteen paragraphs, Yoo's article substantially agrees with Gingrich's recommendations and remarks regarding judicial overreach save one - he finds subjecting judges to the subpoena beyond the pale.
He agrees with Gingrich's diagnoses of a problem--which, by the way, didn't originate with Gingrich. He's merely the latest person to have this discussion in public. He doesn't agree with all of Gingrich's recommendations. How is that not a substantive difference?
The ideas which are sound include electing politicians that will appoint originalist judges, having a vigorous confirmation process, and reminding each of the three branches that they all have a duty to interpret the Constitution, and in rare cases using the authority of the Executive branch to override a judicial opinion.
The ideas of less soundness, or which are fundamentally unsound, include Gingrich's proposals not only to subpoena judges to testify, but also his recommendation that Congress could impeach or remove a judge from the federal bench for failing to write an originalist enough opinion.
The unsound ideas don't merely correct judicial supremacy, they threaten the branch's co-equal, Constitutional status.
Mar '11
Re: Finding the Right Cure for Judicial Supremacy
You'll notice in Prof. Yoo's article that he cites Jefferson, Jackson, Lincoln, and FDR as examples of the way the Executive has taken it upon itself to measure the constitutionality of a law. That is, in 200 or so years, there are really very few cases in which the Executive has openly defied a court ruling (not just sought to limit its applicability), and even when the Executive defied a particular ruling, it has construed its defiance narrowly.
Lincoln didn't say, "Dred Scott is wrong, therefore Congress should impeach all the justices", he just asserted he wasn't bound by that one ruling. Even in his defiance in this most egregious of cases, he ensured that the integrity of the institution itself was protected.
Has Gingrich done the same with his proposal?
Newt routinely is guilty of hyperbole: the Virginia ballot is Pearl Harbor? How can I be sure that "rarely" in Newt's vocabulary means "only every once in a while in 200 years, and only in the most egregious cases" and not "ever time Newt gets a wild hair across his behind".
Feb '11
Re: Finding the Right Cure for Judicial Supremacy
Klaatu:
Let's answer your last point first, because it helps explain the first one. Congress can certainly withhold jurisdiction, but it cannot vest jurisdiction to decide cases and controversies in itself. In other words, if you are not happy with the results of a case in which you are a party, Congress cannot constitutionally pass a law permitting you to appeal to the House Judiciary Committee and authorizing the Committee to overturn the court's order.
Given that Congress cannot change the results of a case, what is the point of a hearing to explain in greater detail the reasoning underlying a decision? Venting populist frustrations against the court; scoring political points? Do these reflect conservative values.
Congress has a more legitimate interest in the executive, if for no other reason than the executive is almost always spending money Congress must appropriate. But even the executive has some privileges.
Part of me would like to see hearings in which congressmen debated constitutional theory with justices, mostly because it would require congressmen to develop views on the Constitution. But this risks greasing the skids for the courts' interpretation of a particular law.
Jan '11
Re: Finding the Right Cure for Judicial Supremacy
Often the purpose of the hearing is simply to get further information on the record. That the Congress cannot overturn a specific court's order is no more relevant than is the fact it cannot impose a specific strategy or tactic on a theater military commander. If our federal judges are such wilting flowers that they cannot withstand a bit of questioning by our elected representatives...
I simply do not buy the argument that Congress has a more legitimate interest in the executive than it does the judiciary. If anything the deference due to the executive is greater than that due to the judiciary as the President is also an elected representative of the American people.
Feb '11
Re: Finding the Right Cure for Judicial Supremacy
Klaatu
Often the purpose of the hearing is simply to get further information on the record. . . . If our federal judges are such wilting flowers that they cannot withstand a bit of questioning by our elected representatives...
Congress is not Deutsche Grammaphone--it's function is not to make records. Hearings ought to relate to business at hand. Personally, I'm sick of committees using hearings to create sound bites, often at the expense of those giving testimony (e.g., hearings on steroid use). They're too much like show trials.
I don't buy the whole fantasy of this having any impact on judges. Congress won't need to send a marshal to force any judge to come to a hearing. The judge will simply cancel whatever's on his docket (further delaying justice), attend the hearing (at taxpayer expense) and point out where his opinion addresses a question or why he regarded the question as irrelevant to the decision. If a congressman criticizes a decision, the judge should tell him he's entitled to his opinion, but not engage. Again, what's the point?
Jan '11
Re: Finding the Right Cure for Judicial Supremacy
Congress is in the oversight business. I am still not quite sure whether you believe they should be out of that business entirely or, if not why it should be confined solely to overseeing the executive?
The point is accountability. Just as the Congress has the right to expect executive branch officials answer their questions honestly and fully when testifying, so too should they expect the same from judicial branch officials. A judge who repeatedly refuses to cooperate would arguably no longer be serving during 'good behavior.'
Feb '11
Re: Finding the Right Cure for Judicial Supremacy
Klaatu:
You're creating a strawman (as did Gingrich). Why wouldn't judges answer honestly and fully? If you ranked people by how highly people think of themselves, you would find judges clustered at the top of the scale, above even the average congressman. They're not ashamed of their decisions, and will be happy to explain them at length to the ignorant louts who don't appreciate them. Go listen to an interview with Justice Blackman or Stephens after they left the bench; their only regret is that they weren't more liberal.
What would Congress be overseeing? My point on hearings is simple: if Congress cannot do anything about it, they shouldn't be wasting their time having a hearing about it. Take Enron for example. Congress had every right to call in the former officers and find out how they cooked their books for so long, with a view to enacting laws to prevent this in the future. But their attempts to publicly depose the officers and gratuitous indignation over the losses suffered was pure political theater, and completely out of line. I wouldn't do anything to encourage more of this behavior.
Jan '11
Re: Finding the Right Cure for Judicial Supremacy
ShellGamer: Klaatu:
You're creating a strawman (as did Gingrich). Why wouldn't judges answer honestly and fully?
Did you not state that the judge would simply, "tell (the Congressman) he's entitled to his opinion, but not engage"?
The purpose of the Enron hearings was to determine if new legislation was necessary. The purpose of these hearings would be to determine if the courts require different or greater regulation, if the judge in question acted improperly, or if a matter should be removed from the courts' jurisdiction.
Feb '11
Re: Finding the Right Cure for Judicial Supremacy
Klaatu
ShellGamer: Klaatu:
You're creating a strawman (as did Gingrich). Why wouldn't judges answer honestly and fully?
Did you not state that the judge would simply, "tell (the Congressman) he's entitled to his opinion, but not engage"?
The purpose of the Enron hearings was to determine if new legislation was necessary. The purpose of these hearings would be to determine if the courts require different or greater regulation, if the judge in question acted improperly, or if a matter should be removed from the courts' jurisdiction. · Jan 12 at 12:53pm
No one who watched the Enron hearings could honestly believe they were intended to shape legislation. They were plainly to brow beat the witnesses and aggrandize the interlocutors.
Same with Newt's hearings. They aren't premised on improper conduct (e.g., refusal to recuse in the face of a conflict of interest) or other regulatory questions. They're intended to let congressmen brow beat the judge over his decision, to score political points without changing the outcome. This makes them pointless.