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Overturning Supreme Court Decisions
Last week I was reading some of the twitter outrage over judicial appointments, and how the Trump Administration would change the course of American Jurisprudence for a generation — even if he can be limited to one term. Naturally, the focus of these freakouts was Roe v. Wade. But I started to think, if I had the power to overturn Supreme Court decisions, I honestly dont think I would start with Roe. There are many others that need to be done away with that have a far larger impact on day to day lives.
This is my list, in random order:
Kelo v. City of New London: Permits the abuse of eminent domain for connected developer cronies of city hall.
Katz v. US: On the reasonable expectation of privacy. A terrible standard. Anyone who has ever dated knows there is wide variation on what a “reasonable expectation” is. A person’s rights should not depend on their reasonable expectations.
Harlow v. Fitzgerald: Qualified immunity of public officials. No.
Chevron v. NRDC: “Administrative deference” allows agencies to interpret statutes. Essentially allows bureaucrats to re-write the statutes that should have otherwise constrained their activities — creating the administrative state.
There are probably four or five more that I would like to overturn before Roe. What would be your list?
Published in Law
Pretty interesting list, OccupantCDN.
(BTW, I tried ‘Occ’ as an informal nickname, but it reads as if it might be pronounced ‘oss’ instead of the proper sound of ‘okk’)
Wickard v. Filburn. Enabled Congress to regulate virtually anything via the commerce clause.
FWIW, I think it was Thomas at his confirmation hearing said, in reference to stare decisis, that there were just some things that couldn’t be reversed; specifically he mentioned not being able to reverse the use of Federal Reserve notes as currency and going back to coining money.
I’d like to see that revisited, but Thomas thinks it’s impossible today.
Were I a rich donor looking to support some case or another potentially headed to the newly-conservative Supreme Court, one of the questions I would ask is: how much would overturning decision X actually change the situation on the ground?
In other words, my sense is that many of the decisions we rail against are more symbolic transgressions than acts which truly change life in America. For instance, even if Roe v Wade were overturned, most everyone seems to agree that the actual number of abortions would likely not change dramatically in one direction or another.
Similarly, for all the (justified) outrage against the Kelo decision, it seems like I never heard about it kicking off a big wave of expropriation.
On the other hand, Randy’s suggestion of Wickard v Filburn seems like a case that genuinely had nearly endless ripple effects on other cases and legislation in general since it was decided. That would certainly be near the top of my list for that reason alone.
Overturning R v W wouldn’t change much but in the course of moving abortion law to the states it would cost Planned parenthood significantly. They’d have to bus some of the minorities they want aborted to other states and they’d have to fight for legislation in 50 states. All good and while it wouldn’t overturn the culture of death which has to change on it’s own and is but it should be overturned because it was bad law has politicized the courts more than any other decision.
The other decisions have more to do with abusive government and overturning them is also essential.
Yes, definitely. For those already born ;>)
I used to agree with this position but now believe that the important thing is to have stability of value in whatever constitutes currency; neither inflation nor deflation inasmuch as that is attainable. This is wholly determined by the amount of currency relative to real GDP in the market served making it very difficult to attain using commodity based currencies. The job of the Fed is supposed to be maintaining stability of value. They have done a really poor job of this, especially early in their existence when they inflated, then deflated the currency contributing greatly to the beginning of the Great Depression. However, returning to commodity based currencies would not correct this and would, I believe, exacerbate the difficulties.
This is not the government’s job, and it’s not free-markets; it’s the opposite, it’s micromanaging an otherwise free economy, isn’t it?
And from what I understand the charter of the Fed was specifically NOT to dictate or control the economy but to protect member banks from runs and insolvency.
I’d like to see them overturn Marbury v. Madison
I agree with this in spirit, but I don’t think it would actually help much on a practical level.
If courts were given more leeway over technocratic decisions, all that would happen is that balance of decision-making power over complex and obscure issues would shift from one group of unelected officials to another group of unelected officials – worse yet, to a group (judges) who are both less technically-qualified to pass judgment on such detailed issues, and even less accountable than the technocrats (since federal judges are nearly impossible to fire).
That’s a painful trade-off, and it’s one that can be seen in practice: in Germany (where I live), courts very regularly overrule decisions made by faceless bureaucrats at some federal agency. The upshot is chaos: court decisions often conflict with other policies determined by the same agency, or different courts come to different conclusions, and regulations shift so frequently that the whole affair just looks like a scheme to enrich lawyers and compliance experts. It’s truly a “careful what you wish for” scenario.
The root problem is not the fact that faceless bureaucrats can make so many decisions unchecked, it’s the fact that the scope of government has expanded so broadly and deeply that anyone at the federal level is making such wide-reaching decisions. In other words, the solution is not to add another level of unaccountable officials, it’s to remove the power of any branch of the government to conduct such micromanagement in the first place.
Of course, a genuine reduction in the scope of federal government probably won’t happen in any of our lifetimes, so maybe repealing Chevron is the lesser of all evils after all. Who knows.
The FGM decision in Michigan may tee that up for the Supreme Court. The judge applied a strict scrutiny test on whether interstate commerce was involved in the criminalizing of FGM by the federal government. Since there was a deprivation of liberty risk involved rather than a mere property interest you could end up with strong strict scrutiny on criminal actions and a lesser standard for general regulation and not get a full reversal of Wickard.
Carolene Products (1937) in which the Court had to tie itself in knots to arrive at a decision in which it decided some constitutional liberties deserved protection and some did not (specifically anything that, in the court’s view, involved economic liberty), leading to the bizarre levels of scrutiny approach we have today.
Also Williamson v Lee Optical Co (1955), in which the Court decided that state laws regulating business would only be subject to a rational basis review regarding their constitutionality which effectively gave states an unfettered ability to regulate businesses.
Well, yes, if that’s where an overturn would leave the issue, it wouldn’t help much. But it might also help shake Congress out of its lethargy and inspire it to reform the powers it grants to administrative agencies. I doubt it would all happen in one fell swoop, but it would make the whole process an issue.
What would the alternative be?
The entire series of cases in which the Supreme Court interpreted the explicit language of the 1964 Civil Rights Act prohibiting discrimination on the basis of sex, race, color, national origin, and religion, to actually allow for discrimination on the basis of sex, race, color, national origin, and religion, if the Court thought it appropriate. Most people think the core holding of Plessy v Ferguson (1896) was overturned, but it never has. The Supreme Court has consistently held that discrimination based, particularly on race and color, is appropriate if the Court decides it is. What has changed over the decades is the type of discrimination that Court approves of. I find that astonishing in light of the specific language of the 1964 Act, legislation that might not have been enacted in its current form if Congress realized how the courts would interpret it.
Tunney v. Dempsey should definitely be revisited.
That decision always seemed sort of weird to me. Picture three kids (our co-equal branches of government) arguing about something on the playground. Then one of them – little Johnny Marshall – says “Guys, I will decide this as well as other disputes from now on”. Even on a playground, that wouldn’t play.
The original intent was that all three branches were responsible for following the constitution, but Marbury v. Madison has resulted in a congress which just passes stuff without caring. I remember one reporter questioning Pelosi about what power enumerated in the constitution gave congress the power to pass a particular bill. Her response was “Are you kidding me?”
On the other hand, I can see that it would result in some chaos such as when Andrew Jackson saying (paraphrased) “Marshall has made his decision, let him enforce it”
A very fine post.
I particularly like your point that there are many more onerous decisions other than Roe vs Wade, a huge white hot lightning rod of religious contention, which if completely overturned would likely mire the Court in a firestorm of controversy that would perhaps overwhelm all else and impede it’s effectiveness. Not that I don’t think Roe needs to be fiddled with, but I would also like to point out that Roe at least outlawed late term partial birth abortions which subsequent even more outlandish decisions somehow allowed.
That said I believe the Court should take a hard look at the enlargement of Police Power which began with Commonwealth vs Alger of 1851 a decision written by then Chief Justice Lemuel Shaw who wrote ” “every holder of property…holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, not injurious to the rights of the community.”
Professor Benjamin Barros wrote :”Shaw’s attempt to make a principled distinction between eminent domain and the police power was understandable. In the 19th century, it was widely accepted that just compensation was required only for physical takings, and regulatory restraints on property were generally considered to be outside of the scope of the Takings clause.
This is the beginning of almost unfettered regulation that effectively takes away the reasonable use or a portion thereof of property based upon ‘General Welfare Clause” or the latin principle of use of police salus populi suprema lex esto (“the welfare of the people shall be the supreme law”), to justify restriction of individual liberties in order to protect the general welfare.
The Kelo, Katz and Chevron decisions and a host of other very destructive decisions all descend from Commonwealth vs Alger, which taken together effectively nullify the “Takings Clause” and the right to a reasonable compensation for a government taking. The consequences have been horrendous with hardly any checks and balances on government police power which gets evermore onerous every day. All these decisions are in direct conflict with the original spirit of the Constitution and need a serious reworking to bring them back to a equitable Constitutionally sound point of view.
Good question. From a results perspective there are many different routes the Court might take, but overturning Carolene and Lee Optical, which are linked in their rationale, would fix the grave intellectual error that has had larger repercussions. Carolene grew out of the Court’s attempt to find a constitutional route to approve of New Deal type legislation while not completely destroying individual liberty. To solve this problem, the Court created an artificial distinction between “economic liberties” which deserved a much lesser degree of constitutional protection and “individual liberties” which deserved stronger protection (this is the origin of the famous Footnote 4 in the decision). This despite the long standing recognition that liberties of all types are intertwined (see, for instance, Madison’s 1791 essay on property). Lee Optical essentially confirmed the Court’s complete withdrawal from examining assaults on economic liberties. Since then it has never found any state law regarding business regulation to failure to muster “rational basis” scrutiny.
As a side note it is interesting to see that many of the worst New Deal court decisions in terms of expanding the state, such as Carolene and Wickard, were based on the FDR Administration’s theory that raising the prices of agricultural goods was the way to get America out of the Depression.
Yeah, this is the first one I thought of too.
It is a bizarre formulation; anything that might one day be ‘X’ is now ‘X’.
About six years ago I had the privilege of attending the live taping of an episode of Uncommon Knowledge in which Peter interviewed Justice Scalia. I found it interesting that Scalia said that even if they could have the votes to overturn Marbury v Madison he wouldn’t do it – water under the bridge. In essence, he said that we’ve built up too much institutional infrastructure on the decision, and the destabilizing effect of overturning it wouldn’t be worth it.
Perhaps a more fitting analogy is that of a business with three co-equal partners who each have a completely different role in the company but also each get to independently decide what the company’s goals, strategies, and procedures should be. Companies like that don’t last very long.
I’m not convinced that making the Supreme Court the final arbiter was the proper solution, but I don’t think a country in which each branch could decide independently what is or is not constitutional would have lasted long.
The year (not the subject) brings to mind West Coast Hotel v. Parrish in which SCOTUS upheld the constitutionality of Washington’s minimum wage law and overturned an earlier decision on the constitutionality of a minimum wage. Although it’s not much discussed today, the case signaled the end of the so-called Lochner period of “pro-business” rulings that had been under attack by progressives.
I was just sort of kidding about overturning Marbury. I’d like to see it happen, as in it would be interesting in a “pass the popcorn” sense to see the Supreme Court undercut its own basis of action. But I wouldn’t really like to see it go away. Maybe it would have been better if it came about through some mechanism other than self-assertion of power, but it works pretty much the way it needs to.
True, but the other branches’ abdication of responsibility towards the Constitution is embarrassing.
Especially the legislative branch these days. The other branch assumes too much responsibility, but somebody has to do the work that the legislators refuse to do.
If we took away their ability to do “constituent services”, maybe the legislators would get back to their real jobs.
And it wasn’t Marbury v Madison that led to this. Right through the 19th century you can find serious discussions in Congress regarding the constitutionality of a proposed action.
The Constitution gives Congress the power to regulate the currency . Congress gave this power to the Fed which may not be constitutional but that’s the way it is . Regulting the money supply is not the same as regulating the economy though of course doing a poor job has severe consequences for the economy while doing well supports stable growth . Business needs predictability and a stable currency helps to provide that.
Wish we could give business a stable legislature as well.