AHunter3 raises the best point. Seven of the nine current justices were appointed by Republican Presidents. Why on earth would the Republicans want to diminish the power of the court?
Too cumbersome. An extreme solution to a problem that doesn’t exist. And those who do think that there’s a a problem would remain unsatisfied. (Witness at least one person who posted today, (still) complaining about the 2000 election decision and advocating terrorism as a solution.)
And those Republicans have eviscerated the Constitution and judicially enacted every plank in the party platform, right? Before you answer, consider that (contrary to claims made in years of apocalyptic Democratic fundraising appeals), abortion is still recognized as a Constitutional right, Federal gun control statutes are enforced, church-state separation is maintained, Earl Warren and David Souter were Republican nominees, and the current Court struck down a state anti-gay statute. Yup, them Republican justices sure is evil.)
Extremists on both sides complain about SCOTUS decisions, and have for years. I think that’s a pretty good sign that the system is working.
The idea is poor, but the problem remains: SCOTUS is too powerful, dissent within in it on important matters is too common (5-4 decisions on matters of grave importance), and it has abused its power far too often (Dred Scott, Roe v. Wade).
I rather liked Zev’s ideas.
So if this massive Super-SCOTUS ends up deciding something 111-103, that’s somehow better?
And you seem to disagree with both of the decisions that you cite. (FTR, I’m with you on one, but not the other. I leave it as an exercise for the student to determine which is which.) But both decisions were contrary to the Republican party platform of the day. So it logically follows that you are a Republican. Why, then, are you advocating a major Constitutional change to remedy a perceived defect in the way the current Republican Court makes decisions?
Zev’s idea has problems.
What he’s essentially proposing is a further court of appeal, to which recourse can be had only in limited cases. But
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the court never meets collectively, and its members don’t get to discuss issues, explore one another’s views, tease out uncertainties, etc, and
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the court doesn’t hear oral argument and has no opportunity to ask advocates to address particular points, etc.
This doesn’t sound to me like a recipe for good decision-making
There’s a further problem. The court can affirm or overturn the Supreme Court’s decision, but it can give no reasons. If it overturns the decision, somebody has to decide what decision <i>ought</i> to have been made, and what orders should flow from that. The only conceivable course is to remit the matter to the Supreme Court, but as they don’t know why their decision has been overturned they’ll be at a bit of a loss as to what to do. And future courts will find it difficult to know what precential value to attach to the decisions of the final appeal court, since they won’t know why they were made or what points of law the court was asserting.
All-in-all, not good.
A variation is possible. There’s no reason why every Supreme Court justice has to sit on every case. Other supreme courts don’t work this way. There could be a greatly expanded supreme court which normally sat in panels of, say, five judges. On a constitutional issue, if the five judges could agree on some matter, that would be that. If they couldn’t agree, the matter would be remitted to the full court. This would be small enough to allow for a proper hearing and a collaborative decision-making process, but large enough to dilute the influence of any single judge (or, at any rate, to dilute it below what it is now).
I’m not sure that any of this is necessary or desirable, but it strikes me as preferable to Zev’s proposals.
No, becuase you’d need a two-thirds majority to overturn the court’s decision.
Zev Steinhardt
A fair criticism. If I allowed them to meet once in a while to discuss and decide, is that better?
The court would rely on the arguments presented to SCOTUS. I would think that by the time it got to this level, both sides would have their arguments well known.
Also a fair critcism. However, I would think that if 2/3 of the judges in this panel could see why it was unconsitutional, then the judges on SCOTUS should be able to pick it up. At the very least, the SCOTUS judges who were in the minority (remember, unanimous decisions can’t be overturned) will be able to point it out to their colleagues.
Zev Steinhardt
The whole thing started when a large part of the National Recovery Act was ruled unconstitutional, I believe. I don’t remember that the Court ever reversed that. Other adverse decisions followed and FDR overreached.
This site contains ascathing essay by columnist Dorothy Thompson. (By the way, the essay proves that comparisons to Hitler go way back.)
This is the reface to Thompson’s piece: “President Franklin Roosevelt’s 1937 attempt to expand the federal judiciary, known as his ‘Court-packing plan’ by its many critics, met with ferocious opposition. Congressmen who had warily supported the New Deal now backed away, unnerved by the president’s willingness to subvert the existing power structure. In the popular press, columns such as Dorothy Thompson’s from the Washington Star reflected both popular disgust at Roosevelt’s plan to increase the number of Supreme Court justices and FDR’s continued popularity. Thompson’s comparison of Roosevelt to Hitler seems ridiculous now, but others (like Father Charles Coughlin) made such comparisons regularly in 1937. Ironically, over the next four years FDR was able to fill seven vacancies on the Court, largely ending its opposition to the New Deal. By then, however, thanks in large part to public opposition to the Court-packing plan, he had lost the predictable majorities that had easily carried his bills through Congress during his first term.”
And this from the University of Virginia.
[The lead in mentions that after the ‘packing’ brou-ha-ha the Court upheld the Wagner Labor Relations Act and the Social Security Act so that in the site’s words --]
"Roosevelt had a Court he could live with (he would eventually appoint eight justices while in office) but the damage had been done. The election of 1936, in which he had campaigned against some anti-New Deal Democrats, along his proposal and political handling of judicial reorganization had secured him numerous enemies.
The energized conservative opposition succeeded in blocking much of his remaining domestic programs, and as his relations with Congress declined, so did the New Deal. Furthermore, while the New Deal was built on deficit spending, one of the pillars of FDR’s economic policy was his belief in a balanced budget. As he cut federal spending, the nation fell into an economic recession, as bad as any it had experienced, that saw unemployment jump to 20 percent while production and industrial output declined. Although a few laws would be passed in 1938, the politics and economics of the last years of the decade brought the New Deal to a close. In his annual message to Congress in 1939, the president shifted his focus to the tense international scene and of his requested $9 billion budget, almost one-sixth would go to defense. Contrary to the style and energy with which it had arrived, the New Deal slipped out of the decade unnoticed. Full economic recovery would come until World War II, but psychologically, the nation had recovered long ago."
You seem to claim that the favorable decisions after the uproar resulted from FDR’s pressure. However, that is an interpretaion and I surely don’t have to remind you that just because one action follows another it does not follow that the preceding action caused the successor.
Maybe the Court had grounds for not overturning the latter two.
The facts seem to indicate that Roosevelt was never so successful domestically after the packing proposal as he was before, and because he was able to appoint to many justices in the normal manner the need for a Court change disappeared.
[Hi Zev
I think they’d have to meet to discuss every case. And – this is the killer – they’d have to be a group small enough to have useful discussions and to arrive at collaborative decisions.
Arguments before SCOTUS are substantially presented in writing, but there is always an oral hearing at which the justices can ask counsel to expand on points in the written arguments that interest them, answer questions that occur to them, etc. The justices in the Court of Final Appeal won’t have this opportunity, and I think that does matter. To put it no higher, I certainly can’t see how the lack of such an opportunity can contribute to a better decision.
It’s not unusual for judges to arrive at the same conclusion for different reasons or by different routes. Several reasons will often be advanced as to why a particular measure is unconstitutional (or not). In the Supreme Court, we know which reasons led to the decision, becauses the justices tell us. We won’t know in the Court of Final Appeal. Even the individual members of the Court of Final Appeal won’t know why the other members voted as they did. They may be able to guess but, then again, they may not. The Supreme Court justices – on both sides of the issue – will be in the same position.
The bottom line is that I see no reason to assume that a decision made by two-thirds of two hundred people who haven’t spoken to one another, haven’t heard oral argument and don’t give reasons should be either a sounder or more useful decision than one by five out of nine people who do all these things. The Supreme Court process seems to me sounder than the one you propose, and the disadvantages of your process don’t seem to be to be compensated for by the inclusion of a larger number of people.
Random, maybe it’s time you considered switching to decaf. There was nothing in my post that attacked the Republicans. I’m a Republican myself.
Zev’s idea is interesting but there’s one big problem that hasn’t been raised. Virtually everyone complains about the current overload in the court system. Can you imagine what the effect would be if the government pulled the entire Circuit Court judiciary off their day jobs to review a Supreme Court decision?
I’m a pro-life, anti-racist socialist, not a Republican. You think the Warren court pulling RvW out of its a** was right? It was one of the greatest abuses of power in this history of the nation. Regardless of whether the effect of that decision was beneficial or not.
I see what you mean about the 111-103 vote. Still, think of it this way: if there was such a grave disagreement in the country on a matter of importance, then at that point we pretty much need a constitutional amendment to fix the problem. A 5-4 vote on the part of SCOTUS would have just been a band-aid. Just as Dredd Scott was; we eventually needed a war to decide that one.
The decisions of SCOTUS are only as good as the tradition that has built up around them. At this point in time, the way things are is at least workable: SCOTUS does NOT order free hotdogs for all, etc. When they flub one, as they often do, we just swallow hard and chalk it up to checks and balances.
But recent things like RvW and the Bush-Gore case are really starting to toy with an already weak tradition. Personally, I think there’s got to be a better way.
Roe v. Wade was a decision of the Burger court.
What’s wrong with dissent? Whether on the bench, in the Congress, or among voters, substantial dissent indicates that there are different perspectives on the issue. Far from seeing unanimous Supreme Court decisions on major social issues as a good thing, I would see that as sign that the Court is out of touch.
Oh, and by the way - Dred Scott and Roe v. Wade were both 7-2 decisions, not 5-4. What “5-4 decisions on matters of grave importance” were you thinking of? If you were thinking of Bush v. Gore, that is consistent with my comment above - the Court was an accurate reflection of a badly-divided electorate.
Thanks for the corrections, although I did not specifically mean to say that those three cases were 5-4. I just meant that SCOTUS does have 5-4 decisions on matters of great importance, and then, well, what are we to make of it? If it has something to do with the Constitution, why are these learned men disagreeing? They know the document, they know the precedents–yet they are split down the middle. In such a case, we have to wonder why their judgement is superior to that of anyone else. Alternatively, we have to wonder whether the Constitution is clear on the matter or touches on it all (it sure didn’t in RvW).
Thanks for the corrections, although I did not specifically mean to say that those three cases were 5-4. I just meant that SCOTUS does have 5-4 decisions on matters of great importance, and then, well, what are we to make of it? If it has something to do with the Constitution, why are these learned men disagreeing? They know the document, they know the precedents–yet they are split down the middle. In such a case, we have to wonder why their judgement is superior to that of anyone else.
Alternatively, we have to wonder whether the Constitution is clear on the matter or touches on it all (it sure didn’t in RvW, which, however, was 7-2 as you said).
Bah, could a Mod please erase the 1st part of my double post? Thanks.
Well, their judgement isn’t superior to that of anyone else. However, that is the system that we have and any other system would also use people whose judgement also wouldn’t be better than anyone elses.
As soon as the Constitution became the law of the land there were disagreements as to its interpretation. And many of the political leaders doing the disagreeing were the framers themselves.
As to the Constitution being clear, I think it rare that anything written is ever so clear that there is only one possible interpretation.
The system we have has worked well. As Henry Ford told the buyers of the Model T, “If the car is running, leave it alone.”
Probably for the same reason that the learned women who also sit on the Supreme Court disagree. The Constitution is not perfectly clear. It doesn’t spell out the answer to every legal question. It doesn’t specify, for example, at what point a being has the right to life which outweighs the right of a citizen to choose not to allow that being to continue to grow within. But it does offer guidelines.
The framers of the Constitution coudn’t foresee such issues as stem cell research, the right to bear nuclear arms, “enemy combatants” vs. POWs, surrogate parenting, etc.
That’s why some people mistakenly think that the SCOTUS is making laws. It’s not. The Justices are examining legal situations using the Constitution as the light by which they read.
It seems to me that this thread has wandered far off topic.
First, that proposed bill is (a) political grandstanding, and (b) a failure to understand the distinction between the legislative and judicial powers. Which, BTW, makes me wonder about the 26 representatives who co-sponsored it.
The Supreme Court – and every other court in the nation – are bound by the criterion that they must decide cases or controversies brought before them by the law of the land. That’s an important phrase, and it is a “term of art.”
As I’ve had occasion to point out in other threads, “law” means something quite different to a lawyer or judge than it does to the average citizen. It is not synonymous to “statute” but a word that encompasses the entire body of legal procedure under which the courts and our entire legal system operates.
If one of our member doctors sees a patient and performs a medical procedure or prescribes pharmaceuticals to alleviate what is ailing that patient, what guarantee does he have that he will in fact get paid for the services he has performed? Is he supposed to collect money ahead of time, with an armed guard at the door of the treatment room, to assure that he can make a living as a physician?
The answer is, obviously, that payments for professional services are a debt incurred and collectible through the courts – and that is not necessarily something that some legislature decided to enact as statute; it’s a piece of common law, which may or may not be formally codified in statute in a given jurisdiction. Likewise the merchant expects money for the goods he displays for sale before one can walk out bearing them. The agreement that someone will allow you to do or take something in exchange for financial consideration by contract is the underpinning of our economic system. Even our posting here is because the Chicago Reader, Inc., has accepted a sum of money from each of us to enable us to express ourselves here. And it is by the common consent of all citizens that a judge, who is himself physically powerless to enforce his judgments, will sit on a case and render judgment that is then enforceable by the power of the law enforcement community.
But “the law of the land” is not merely the body of statutes, or even the common law, but the entire complexus of doctrines and decisions that have evolved over nearly a thousand years of practicing law. The idea that you can enter a store, pick up a pack of Wrigley’s Spearmint Gum, place a quarter on the clerk’s counter, and walk out of the store chewing that gum is, at rock bottom, a contract with complex legal and economic ideas underlying it. That quarter has less intrinsic value than the gum; its use as money comes from a government guarantee and consensus that it constitutes “money” – a means of exchange. And that this is a commercial transaction and not a theft derives from the abstract ideas of merchandise offered for sale, money as a consideration that may be exchanged for goods, etc.
The American judicial system underwrites the concept of “law” with a basic set of provisions for how “law” will be established and maintained, much of which is found in the Constitution. And American courts rule on the basis of the Constitution – in every case. Its own provision that it, and statutes and regulations enacted in conformance to it, shall be the supreme law of the land, and the common consent of the citizenry that this be so, is the basis under which courts make decisions.
Judicial review is not explicit in the Constitution. But it is in fact implicit in it – because of that clause. A court acting under the Constitution can only rule in conformity with it. If a judge fines you $50 for speeding, there’s a set of underlying assumptions: that the legislature of the state has the power to pass laws governing speed limits in motor vehicles, that some body – the state DOT or a local government – has the right to establish a maximum legal speed on a given stretch of highway, that a given policeman has the power to detain you for exceeding the legal speed and write you a ticket for doing so, that the courts have the power to fine you for violating that law, etc. And such decisions lie in the idea that the states have retained the “police power” as a part of their reserved powers not delegated to the Federal government in the Constitution. So at rock bottom even that speeding ticket is a Constitutional issue.
Now, it is the province of the courts to apply the law of the land to a given case raised in consequence of an allegation that it has somehow been broken – that either a criminal act has been performed or that a civil disagreement has arisen under the terms of actual or implicit contracts created in accordance with law. And the Constitution and the laws made in conformance to it are the supreme law of the land. The same law that requires the sheriff to lock you up in jail for a year for petty theft by order of a judge prohibits him from doing so simply because he doesn’t like your face or attitude. Decisions need to be made in conformance to law for them to be enforceable.
But the question, as Calder v. Bull and Marbury v. Madison showed early on, is that statute law, to be enforceable, must be made in conformance to the Constitution. And that somebody must decide whether the statute is in fact conformable to the Constitution. The legislature – Congress or a state one – has the power and duty to decide that it has the right to act under the powers given it to enact such a statute. The executive – the President, his Administration, or the Governor of the state or his people – must decide that he does in fact have the power to act under the Constitution and that statute – and he has the right to refuse to enforce a law he believes to violate the Constitution, pending a decision by the courts. But ultimately the power devolves on the courts, because it is their job to take a statute which has been duly passed and an act of enforcement which has been taken under it and decide whether it conforms to the Constitution when a case is properly brought and a claim that it does not so conform is properly made.
Now, many people have found the understanding of the Supreme Court since 1937 that the Constitutional principles under which laws are enacted to be based on a far more expansive reading of the wording of the Constitution than they would feel appropriate. This is in fact a matter on which reasonable men can disagree. The fact of the matter is, however, that the Founding Fathers and the various Congresses passing amendments since then chose to use very broad language guaranteeing some fundamental rights, and that those readings are in fact debatable. What, exactly, is “cruel and unusual punishment”? What constitutes “respecting an establishment of religion”? What is “the free exercise thereof”? What are “the privileges and immunities of citizens of the United States”? What is the “due process of law” without which no state may deprive a citizen of life, liberty, or property? What are the unenumerated rights which may not be disparaged by the enumeration of some rights elsewhere in the document? And who is entitled to decide the answers to these questions?
The consensus that we are a country ruled by a government under law, as opposed to one where the power does not derive from a free people, is the foundation of the entire system under which we live – not merely the occasional Constitutional issue, but right down to driving down the road, making a purchase at a store, expecting to get paid for the work we perform, and so on. The expectations that we are entitled to X in exchange for Y and free to do Z but prohibited from doing W are intrinsic to how we live. And it is the courts who enforce these expectations.
The Constitution, however, is not sacrosanct – it may be amended. There is no reason why the law of the land may not be changed to more particularly specify what limitations there are on given rights or powers – what rankles is the idea of there being an end run around that process. Those conservatives who feel the court is being too expansive in its readings are complaining of such an end run in one direction – that the court is applying the law in a reading not justified by the text. But in the other direction, those who would constitute matters like the bill referenced in the OP are committing a far graver error – one that strikes at the basis of our common life.
If you believe that “[substantive] due process” or “respecting an establishment of religion” are being misapplied, by all means start a mass movement to change the text and specify exactly what the law should properly be – but do not attempt to subvert the power of law by second-guessing the judges appointed to make such final determininations in the interim. It’s their job to make such decisions, and as illustrated above, not merely a few abstract legal principles but everything regarding our common life depends on that process.
Except that the 5-4 decision in that case had, at least in theory, nothing to do with the learned justices’ opinions about who ought to be the next POTUS, the matter over which the electorate was divided. That issue is entirely outside their sphere of authority. What they were deciding was whether vote recounts in Florida should continue or be stopped on the basis of a couple of legal subtleties about which the “badly-divided electorate” knew nothing.
And I don’t think it’s necessarily true that the court should be expected to be divided on matters over which the general public is divided. The general public knows nothing of the law, and cannot be expected to arrive at the same conclusions as a group of legal scholars. Your position would only be true if the SCOTUS were to decide cases according to political preference rather than legal and constitutional theory. Okay, yes, I suppose we all know that that actually is what they do. But in theory, unanimity on the court means only that the legal merits of a given case are quite clear, not that the court is “out of touch.” In any case, being in touch with the people has nothing whatsoever to do with what their theoretical function is.