The Supreme Court vs. The Legislature on CSPAN

Great Debates
1

This thread is ABOUT a Great Debate, and may become one, so I am starting it here.

I watched (twice!) a show on CSPAN last night, entitled on the screen, “The Role of the Supreme Court,” although CSPAN’s web site titles it a little differently:

Supreme Court and Constitutional Authority

This was a debate taped 10/25/03, at Regent University in Virginia, with 3 panelists for each “side.” In favor of the Supremes continuing pretty much as they have for over 200 years were Alan Dershowitz, Nadine Strossen (ACLU), and Barry Lynn (Americans United for Separation of Church & State). In favor of less power and less use (abuse?) of the Judicial Review concept were Ann Coulter, David Limbaugh and Jay Sekulow.

The less-power group feels that the Supremes shouldn’t be able to override legislation, which they defined as the “clear will of the majority” and the justices as “unelected, therefore not responsive to the electorate.”

If anyone else has seen this show, I am interested in how you felt the panelists presented themselves and their case. Myself, I felt the pro-court faction made the more coherent presentation. The anti group, especially Coulter, repeatedly rambled, didn’t answer direct questions, and engaged in the “Ridiculous! The Justices are idiots! Let the people decide, not nine old robed coots!” – type of argument (not an exact quote!).

Of course, I have to admit my biases. I agree with the ACLU that the Constitution is a bulwark against the tyranny of the majority, and the use of “under God” in the Pledge is disturbingly close to “establishment of religion.” I do not agree with Coulter/Limbaugh/Sekulow that Christians are persecuted and need to be “protected” so they can practice their religion on innocent schoolchildren.

If that doesn’t kick off a debate, nothing will. :slight_smile:

2

I didn’t watch the show. Didn’t even know it was on, sounds interesting.

Judicial review of the legislation sounds perfectly acceptable. They are there not to represent the public, but the law, and if laws contradict themselves, there is no longer an ability for “rule of law”. Judges are there ensure a single interpretation determined by an eye to history, an an ear to the ground, and a hand on existing law. That is just what “judging” means, so I don’t find it particularly disingenuous to claim that that is also what judges should do.

Rule of law does not allow for “whatever will be will be.” The two ideas are at odds with each other. Legislation, and its interpretation, under “rule of law” need to form a reliable framework or there is no “rule,” only “law.” Legislation alone cannot guarantee this (neither can judicial review, granted, but it does a whole lot better than legislation).

Legislators, and their defenders, should never appeal to the cry of, “But that’s what I meant!” If that’s what they meant, they should have said it; if what they intend contradicts the existing framework, then the existing framework needs to be adjusted first. All judicial review is activist in this sense: it determines the applicability, eligibility, and scope of legislation holistically when legislation itself fails to.

MHO.

3

I take whatever side Ann Coulter is not on.

I only wish that there were some way that I could also oppose Dershowitz’s side.

4

I think they picked a really weak lineup to take the anti-review side. Ann Coulter is barely fit to argue with Michael Moore, much less Nadine Strossen (much as I disagree with Strossen, she’s a smart broad).

Was Robert Bork booked or something?

5

Then I take it you are a middle-roader? :slight_smile:

Coulter talks “cute,” but her arguments seem populist and not serious. And she wanders, straying farther from the subject, enamoured by the vocal expression of her own thoughts.

Dershowitz I agree with 85% of the time. I think he made a cogent argument here.

Yes, he was borked, I mean booked, on another TV program…

6

Dershowitz used to be a hero to the left until he had the temerity to actually condemn terrorism without the “yes buts” that the Chomskyites always attach to their rants on the subject.

Anyway, the Constitution is there to protect our rights from the whims of the majority.

I don’t think any of us want a society where for example, abortion is legal, then it’s illegal, then it’s legal again, depending on who is in power. Some things can change with different governments. Basic rights being given and taken away every few years would create severe societal problems.

7

I didn’t see the program either and just to be clear, the debate here is about the practice of the courts rather than the Congress determining the constitutionality of the laws, right? Assuming so I would favor having the issue decided by our elected representatives rather than an unelected judiciary. IMO the majority party should have the authority to implement the program that got them elected. Judges should be confined to interpreting the laws rather than judging their propriety.

I reject the notion of our Constitution as a bulwark against the tyranny of the majority. True, sometimes the courts overturn laws I disagree with ( as in the recent sodomy decision for instance ), but I would rather live with the consequences of majority rule rather than what we have now: the tyranny of the minority. A relative handful of rich and powerful individuals run this country and the Constitution is thiers, not ours. It serves the few, not the many, as it was designed to do. It protects the status quo from all but overwhelming desire for change from outside the priviledged circle and protects the rest of us hardly at all from the predations of the plutocracy.

Despite desperate claims to the contrary, majority rule is not chaos. Britain, for instance, is ruled under a form of it. There Parliament has the final say. It’s word binds judges, not the other way around. Does their policy yo yo back and forth willy nilly? No. Majority rule fosters responsibility amongst the governors and understanding amongst the governed. Here in America politicians are free to be irresponsible. Pols, even from the majority party, are free to espouse selfserving and dangerous doctrines because there is little chance of them being implemented. And because they never see the light of day people never get to see their devastating effects and thus learn just how ill-advised they really are. With majority rule such ignorance isn’t tolerated. Those in charge keep their ideologues on short leashes because some ideas are dangerous, if there is a chance of them being acted upon. If the rulers don’t watch out soon others will be in charge. This is part of the secret of our freedom of speech. We are free to say anything because words aren’t dangerous when they can’t change a thing. If I may be permitted a slight exaggeration: Americans can say anything because nothing we can say means anything.

So I guess I stand with Coulter. I’m not bothered. As soon as she gets the memo that the judiciary is again rabidly conservative I’m sure she will conveniently switch her position.

8

What all that boils down to is that liberty only works for the rich. We have to take it away in the interests of economic security for all.

Ben Franklin had something to say about that.

9

And just what was Ben’s bon mot?

10

It seems to me that your summary is based upon your political opinions and not mine that you see posted there. That’s not what I had in mind at all. If I had to sum it up in one short sentence it might go like this: “I would prefer to live in a nation of adults instead of a country of children.”

Presumably adaher is referring to this: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” Poor Richard’s statement is wonderfly applicable because it is so vague. “Essential” is in the eye of the beholder so the quote can be applied to any situation where the beholder doesn’t want to trade freedom for security. Basically it is the equivalent of “Don’t do dumb things.” But much more elegantly stated, of course.

11
  1. Who are the handful of individuals who run the country? 2. How is the plutocracy preying on us? 3. How would either of the above be changed if courts didn’t have the power of judicial review?
12

Did anyone on the program make reference to Marbury v. Madison? Did anyone discuss the issues presented and discussed by then Chief Justice Marshall in that case?

Someone asserted that the rule of the majority of elected representatives should be allowed to occur without review. Would, pray tell, that individual assert that the Supreme Court should not have issued its decision in Brown v. Board of Education?

13

  1. Congressional leaders, policy makers in the executive branch, the major K Street players and their bosses, media moguls. Like that. Want names? Here’s a couple from my neck of the woods: Richard Mellon Scaife and Rick Santorum.

  2. Pork, tax cuts for the wealthy, proemployer legislation and policies, procreditor legislation and policies, weak business and environmental oversight, like that.

  3. Neither statement one or 2 was directed against judicial review but offhand it would be better for the people if there had never been a ruling stating that corporations had the rights of an actual person.

This one does so assert. This one is against segregation but doesn’t support B v BoE. This one supports abortion but not R v W. This one abhors the phrase “under God” in the Pledge but doesn’t support the 9th Circuit’s decision. Because one’s stand is based on principle rather than calculation.

14

That case was mentioned as the present-day justification for judicial review, of course. But IIRC, that was about it; the topic was the role of the Supreme Court today, not 1830’s.

I gave my tape copy to Franklyn, who I hope will be along soon to add to this discussion from an experienced judge’s point of view.

15

I don’t get it. If congressional leaders and policy makers in the executive branch are the problem, how is that problem solved by taking judicial review away from an independent judiciary and allowing exactly those same problematic people to determine the constitutionality of their actions all by their lonesomes? The whole point of having a judiciary with lifetime appointments and a guaranteed salary is that they theoretically don’t succumb to the political and financial pressures that those you named do, and are thus more likely to rule with less bias.

16

Judges work for us. They should do what we want them to do. That’s not bias, it’s democracy.

17

I’m still confused. You do understand that this:

is what “judicial review” means, right? I’m honestly not being snarky here, genuinely confused. You say that you’re in favor of having Congress, not the courts, in charge of determining the constitutionality of their own actions, because having having too much power in a few hands is a problem in this country, but you also identify Congressional leaders as being the “problem hands”. Your plan would seem to put more power in those hands, not less, by allowing them the ability to determine the constitutionality of what they do, and denying a judiciary that isn’t answerable to the plutocracy to say otherwise.

So judges should not uphold the law as they believe it to be, but should submit to public pressure? Why was Plessy v. Ferguson a more accurate reading of what is required by the phrase “Equal Protection” than Brown v. Board of Education? Because a majority of people believed it to be? If the majority thought the other way, would it still have been the right decision?

18

I regret ever responding to jklann’s questions. He never followed up so all it did was cause confusion. He asked who I thought was running this show; I answered. My answer was unrelated to judicial review. I want my ideal Congress, which represents the people, to decide how we will be governed. That does not contradict my dislike for the current Congress which mostly represents the interests.

Sure I know about judicial review. That’s where a court claims that an ordinary law conflicts with a fundamental law and therefor isn’t law at all. The doctrine was established nationally in the aforementioned Marbury v Madison with precedents in the states such as Trevett v Weedon and Bayard v Singleton. I have read Gordon Wood and understand how American elites adapted older ( british ) conceptions of constitutions and fundamental law in new ways in order to restrain state legislatures which had shown the audacity to serve not just the elites but ( shocked gasp! ) represent the interests of the lower orders of society as well. So I do know what “judicial review” means: daddy knows best. I don’t favor Plessy or Brown. I reject the entire notion of judges judging laws unconstitutional. They should always interpret and never nullify. Legislating should be done in legislatures, not in the judiciary.

Nor do I want judges to be independent. I want them to realize that if they try to screw us over we can 86 them. I want them to depend on it. As public servants they are supposed to serve the public. Judicial appointment quamdiu bene se gesserint is just one more trick to keep power out of the hands of the people.

19

My interest diminished when you admitted that your first two points were boilerplate rant inserted into a thread where they were off-topic.

Concerning judicial review—it’s true that Great Britain functions well enough without it, and its government is not noticeably more intrusive or overbearing than ours. However, the United States operates under a federal system of competing sovereignties, while in Britain all power emanates from the national government. Given our federal structure, disputes between federal and state government are inevitable, and somebody has to referee those disputes.

Suppose, for example, that Illinois adopts one system for regulating telecommunications service and the federal government another, and their rules conflict. By choosing to enforce one set of regulations over another, a judge will be engaging in de facto judicial review, ruling that the one government lacks constitutional power relative to the other.

Also, the British parliamentary system makes it easier to boot out the entire government if it oversteps its bounds. Here, with authority divided between a president and two fiercely independent houses of Congress, it’s harder to assign responsibility.

I often get annoyed by judicial review, as does everyone else. Judges will sometimes interpret vague constitutional mandates as demands for legislative action, and use judicial review to increase the size and scope of government, not restrict it. But the worst errors are usually corrected on appeal to higher courts, and on balance I believe we’re better off with judicial review than without it.