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Is the Court Too Deferential? Or Not Deferential Enough?
Restraint — like any virtue — has its place when applied toward the right objects, at the right times, and in the right amounts (h/t: Aristotle). As conservatives with a constrained view of humanity (h/t: Thomas Sowell), this means that we tend to favor restraint over rashness. But in the case of judicial philosophy, our rhetoric may have gotten ahead of our actual beliefs.
Reason’s Damon Root and NRO’s Carson Halloway have been debating the matter on their respective sites, with Root arguing — as he does in his recent book — that our courts have been too deferential to the legislative and executive branches, and Halloway (with an assist from Ramesh Ponnuru) arguing that Root’s prescription is dangerously activist and anti-Burkean. Putting aside the historical question of what the Founders intended — which I think is well-sourced enough on both sides to be unresolvable — the matter essentially boils down to a question of which the following strikes you as less naive: “I’m sure Congress knows what it’s doing” or “I’m sure the Courts know better.”
Given both the poor quality of Congress’s output over the past century and the court’s antipathy for overturning almost any of it, I lean heavily toward the court’s having been too deferential. From campaign finance, to eminent domain, to ObamaCare, the court seems more interested in figuring out how laws could be interpreted as (or stretched into being) constitutional, rather than whether they are or not, as actually written.
Of course, an overly-activist court has its own problems, especially in the hands of Progressives. The one issue where courts seem downright eager to overturn popular legislation — without much attempt to squeeze and stretch meaning to make them constitutional — is on Same Sex Marriage. Whatever else one might say about the matter, it’s hard to see how that issue is more clear cut and worthy of an overturning of popular will than so many others.
Agreed. We should also note that an activist court is less dangerous to the cause of limited government than congress is. No new government bureaucracies are going to come into existence because of a supreme court case. Some existing bureaucracies may have their hands tied by the courts though.
There is a lot of upside to the courts being less deferential with limited downside .
There’s also a big difference between an “activist” court that’s overturning Constitutional and traditional law, and an “activist” court that’s enforcing Constitutional law.
Too many Republicans (looking at you, John Roberts) can’t seem to tell the difference.
It really depends upon the subject the Court is addressing. It has been excessively deferential on almost all regulatory matter (though there have been some signs of hope recently) and probably insufficiently deferential on a number of subjects related to the Bill of Rights and federalism.
Absolutely agreed on marriage, and it has created a poisonous atmosphere in the country that will probably never go away. Unfortunately the lefty Supremes are reliably lefty but the “conservative” Supremes are only partially reliable. Appointing justices turns out to be the biggest legacy of presidents. Obama’s is nasty, as is everything associated with him.
And, if memory servers, the long-term rate for the Supreme Court for overturning laws as unconstitutional is on the order of less than 1% of laws passed.
There’s no argument whatsoever that they’re “not deferential enough”, unless one would like them all to go fishing and just hand the clerk a rubber stamp.
It’s an interesting question. I’m neither knowledgeable enough nor qualified enough to come in with an answer. I have a question, though:
Would a less deferential court be a move closer to aristocracy or philosopher kings? It looks to me as if a less deferential court would not remove the problem of judgement, it would only kick the resolution into the hands of less accountable, less correctable, and more prone to disconnectedness than even those of the legislature. Haven’t we had just such an activist (is that the opposite of deferential?) court for much of the last 100 years?
Ultimately, the power and legitimacy of the system rests in “the people”. It was wise for the “the people” to take measures to restrain the passions of “the people”, but those measures cannot substitute for a responsible citizenry taking it’s ultimate duty seriously. And where there is dispute amongst “the people” over whether a particular action counts as responsible and within the rules, my inclination is to keep it in the hands of “the people” via their representatives. Then again, if there is a way to effectively counter the troubles with a less deferential court then I’d consider that too.
Ed,
There are structural limitations to the court’s powers. Namely, that they can’t write laws. They can void laws, but they can’t write them.
But they do write laws. All the time.
I think Ed partially hits on the main point of this. The activity of the court doesn’t even come into play until the citizenry elects representatives who willfully violate the principle of liberty. With everything Roberts did wrong in Sebelius, I still had to agree with him that it is not primarily his responsibility to protect the citizens from their own bad decisions at the ballot box. In the case of Ocare, Mencken proved right in that we got it good and hard.
That’s wrong. Roe vs Wade struck down laws, it didn’t create any. The example of libel is the same. The deciding what tests it will use when trying to apply the first amendment is not the creation of law: it is a decision of when they will void an existing one. they were deciding under what circumstances the courts would not enforce the penalties of laws passed by congress.
Nope! Clearly it’s NONE OF THE ABOVE
Last week, John Yoo put up a post called Saving Originalism. He asked us to read the attachd paper. I did, and part of what I found was this nugget:
Much as I respect John Yoo … this “construction” strikes me as a legal exercise that needs severe supervision. I don’t like the exercise in the first place, but if I have to live with it, it had better be strictly contained.
If a piece of legislation is so popular that it’s imperative that the Supreme Court’s interpretation of the law be overruled, the US Constitution does include a method for overriding a Supreme Court decision: the amendment process.
This method has not been used successfully since 1971 (effectively-speaking. Yes, the 27th Amendment was ratified in 1992, but it was first proposed in 1789).
Whether the Supreme Court is too deferential or not deferential enough seems to me to be a little beside the point. In either case there is already a remedy available.
It seem to me that the real question should be: Why don’t today’s politicians make use of that remedy?
That’s an excellent point.
It’s amazingly sad how constitutional amendments have largely gone out of fashion, at least at the Federal level.
I’ve said this many times before, but if the gay marriage movement had adopted the tactics of women’s suffrage — i.e., pushing for constitutional amendments in favor of changes — they’d have saved the country a world of hurt.
Actually, Tom, here in CA we passed a constitutional amendment in favor of marriage. Look where that got us. I don’t for a minute think the marriage redefinition movement would have succeeded in getting amendments passed, which is why they used the courts as their designated bullies.
Yes, I know. And I’m mad that it was overturned: Hollingsworth v. Perry was a bad legal ruling, and even worse politics.
My guess is that it wouldn’t have happened yet, or would only just be starting to happen, and in only a few places. SSM has been implemented by popular ballot in multiple states, in addition to those it was imposed on.
Slow and unsteady would have been just fine with me on that.
Well, of course we’re talking about the US Constitution, not state constitutions.
If you want state constitutions to automatically override the opinions of the US Supreme Court, that in itself would require an amendment to the US Constitution at this point.
This doesn’t get to the root of the problem. The root of the problem is that a SCOTUS majority can effectively “amend” the Constitution by judicial fiat. Roe v. Wade is the most obvious example; a pro-SSM ruling this year, if such is the outcome of the currently pending Obergefell case, would be another.
Rather than constitutional change requiring the supermajorities required by the Constitution (2/3 of Congress and 3/4 of the states), this supermajoritarian burden is shifted to those wishing to reverse what I (and many others) view as wrongful and illegitimate constitutional change imposed by SCOTUS.
I think that it is easy to see why many on the Left — and perhaps the all-important Justice Kennedy — think that the issue of SSM is more clear cut and worth of overturning the popular will. They believe that there is no such thing as good-faith opposition to SSM in particular, or to the pro-homosexual agenda in general. They equate opposition to homosexuality with anti-black Jim Crow bigotry. Here’s an example just today, from The Atlantic.
Indeed, SCOTUS already so ruled in the Windsor case, overturning a federal law passed by a bipartisan majority, and signed by President Clinton, because it was “motivated by an improper animus or purpose.” It rejected the idea that there was any legitimate reason for the federal government to decline to recognize SSM, and expressly criticized as wrongful the “stated purpose of the law” which was “to promote ‘an interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.'”
Frankly, the only question in the Overgefell case is whether Justice Kennedy will recoil, at the last, from imposing SSM nationwide on his individual responsibility. He has repeatedly had the chance to announce his support for this position, and has repeatedly declined to do so. Perhaps he will find it to be a “bridge too far,” so to speak. But if not, his rationale is clear from the decisions he has already written, which have been joined by all of the Leftist justices — that any opposition to homosexuality is pure evil, it is barbaric, dark-ages bigotry, beyond the pale of any civilized society.
Part of the problem is that neither Congress nor the president are doing their jobs. If I recall correctly, Bush signed McCain-Feingold because he thought the court would overturn it, even though he personally believed it was unconstitutional. That was a failure on Bush’s part. If he thought it was unconstitutional, he should have vetoed it. SCOTUS isn’t the only arbiter of constitutionality.
I have an issue with Roe v. Wade because I think the court did a poor job of balancing the right of privacy with the right to life, not because it found that there WAS a right to privacy. If you get into that area, you justify the fears of those who were afraid of a bill of rights because it would enumerate rights, making any rights not listed easier to abrogate. The right to privacy just makes sense, regardless of emanations and penumbras.
I prefer the courts have a bias for liberty. By default they should lean to skepticism of any law, as in “Show us where in the Constitution, it says you can do this!” Also, the presumption should be in favor of states and private citizens who are opposing government action.
I would require Supreme Court opinions to be written at the 10th grade level of reading comprehension and be no more than 10 pages long. An educated person should be able to read and understand their rulings.
And, I think an amendment limiting Supreme Court Justices to one 10 year term is in order.
One could argue that’s precisely what Justice Roberts did when he ruled that a fine is substantively the same thing as a tax, and therefore Article 1, Section 8 of the US Constitution says that the Federal government can tax Americans if they do not buy health insurance.
If enough people want the US Constitution to define “tax” and “fine” differently, that will require an amendment.
Asking “where does the Constitution allow this” is not necessarily a bias towards liberty, just as neither too much deference to Congress or too little deference to Congress would necessarily be a bias towards liberty.
At the end of the day, the Supreme Court has one job – to interpret the text. When your interpretation of the text is different than that of the Supreme Court, the remedy is to ratify an amendment that clarifies the distinction.
I think the way we typically frame this issue is probably mistaken.
The question shouldn’t be whether the courts should uphold more laws or strike down more laws. The question should only be the proper scope of the lawmaking power under the constitution. If a million laws violate the constitution, the courts should strike down a million laws. If no laws violate the constitution, then the courts shouldn’t strike down any laws.
That’s overly-simplistic. If Congress writes a law overriding all the state laws to make some activity permitted, it’s clearly “making law”. The same is true for the Court, regardly of the cockamamie language it invents to attempt to hide the fact.
If you want a more clear-cut example of the courts “making law”, here’s the judiciary in Kansas City setting the school budgets:
“Kansas court orders more state spending on schools”
No law was struck down there…
The court set tax rates too. How that passed constitutional muster I’ll never know.
The marriage redefinition movement wouldn’t, but the marriage equality movement is getting close to that point.