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September 19, 2005

Delegitimizing Oligarchy as the First Step to Shedding It

I share Jeff Jacoby's frustration over American citizens' lack of influence when it comes to the Supreme Court. But it seems to me that his "all we've got" attitude toward the confirmation process legitimizes the Court's oligarchical behavior without providing any check on its power or any influence on its activities:

As chief justice, Roberts is likely to have more of an impact on American law and life than any of the senators voting on his nomination. From the power of presidents to hold terror suspects indefinitely to the power of Congress to override state law, from the execution of murderers to the recognition of same-sex marriage, from affirmative action to abortion, Roberts and his fellow justices will shape national policy for years to come. Their decisions will be binding not only on the litigants before them, but also, by longstanding tradition, on the other branches of government. There is no appeal from a Supreme Court ruling. When the court strikes down federal and state laws, federal and state lawmakers must accept its decisions.

There is little in the Constitution to check and balance such immense authority. All that can keep the court answerable in some way to the electorate is the fact that the political branches give them their jobs -- the president appoints federal judges; the Senate confirms them. While delinquent judges can be impeached and removed, there hasn't been a Supreme Court impeachment in 200 years.

So the modest leverage of the nomination process is all we've got to remind the justices that they are public servants who must answer, however indirectly, to the people, not philosopher-kings to whom the people must bow. But if nominees are permitted to keep their views to themselves, how can the people decide whether they want them on the bench? For all the recent talk about the importance of judicial "modesty," Supreme Court justices have been anything but modest in imposing their views on society. Shouldn't we know what those views are before investing them with such power?

The realization that scuttles Jacoby's sensible perspective is embedded within his very reasoning: if we accept that there are no subsequent checks on the judiciary (which I do not), then having potential justices put their views on record is a symbolic practice at best, and a cynical bit of politicking at worst. What's to stop a nominee who espouses a return of abortion policy to state legislatures — or something in the opposite direction if the political atmosphere requires — from reversing his or her position with the very first swish of a newly donned black robe?

If symbolism and an ability to "remind the justices that they are public servants who must answer, however indirectly, to the people" are our only tools for self governance when it comes to the judicial branch, than I'd prefer that our efforts focus on internalizing the belief that judges views are irrelevant to their confirmation because they are irrelevant to their application of the law, as legislated, to specific cases.

Posted by Justin Katz at September 19, 2005 7:18 PM

Which is precisely the message I've gotten from the Roberts hearings - everybody is complaining because they can't figure out where he stands on their favorite policy question. But he keeps insisting that he's going to apply the law fairly and impartially.

The other point, which I think both you and Jacoby don't mention, is that Congress and the Administration have a duty to uphold the Constitution, just as much as the Judiciary does. Both branches have been complicit in advancing the notion that the Supreme Court is the final word, because it takes messy political issues out of their hands. The voters need to demand that the executive and legislative branches do their jobs properly, too.

Posted by: Mike S. at September 20, 2005 9:21 AM

I'd say that the Administrative branch this past term has shown less apathy than Congress has though. I blame the voting public instead. The apathy shown at the voting booth has bled over into Congress. What else can we expect? The members of Congress are selected from the body that has utmost responsibility to uphold the Constitution, that is 'We The People'. The best thing to get Congress back in line would be a voter turnout of greater than 90 points. It would send a "Hey! We're keeping our eyes on you!" message. If the voters demonstrated that they had a vested interest in what the government was doing, then maybe our Representatives would realize we're ready to tackle the tough political issues.

Posted by: smmtheory at September 20, 2005 12:27 PM

Oops, I meant the Executive instead of Administrative branch in the first sentence of my post.

Posted by: smmtheory at September 20, 2005 12:38 PM

Maybe there is something Congress can do when the Supreme Court overreaches. Congress has the power to hold public hearings on pretty much anything it wants, right? So couldn't Congress call a hearing to discuss a Supreme Court ruling, and subpoena one or more justices? It might force them to write opinions more cautiously, if they know they might be called before Congress to explain themselves.

Posted by: Matt Taylor at September 21, 2005 2:34 PM

Congress can do much more than that Matt. And that is exactly the problem, Congress hasn't been doing anything when a SCOTUS ruling goes off the reservation. Among other things, they've let themselves become paralyzed by the stare decisis doctrine even though it doesn't apply to legislation. If a law is declared unconstitutional, it doesn't have to rest there. Congress can go back and re-enact the legislation with modifications that make it more bullet proof to the constitutional argument, but they haven't been doing much that resembles that. Congress also has the power to adjust the number of justices on the Supreme Court bench too. A judge may receive the appointment for life, but that doesn't mean that the position is safe from being eliminated. Constitutionally, there is only one required seat on the Supreme Court. Historically speaking, the number of seats on the bench has been adjusted both up and down.

Posted by: smmtheory at September 21, 2005 9:29 PM