Balkinization: Recall of Judicial Decisions: Time to Dust Off an Old Idea?

Comments:

The purpose of a constitutional republic is to check the power of transient popular majorities to oppress minorities. One of the ways the Constitution accomplishes that goal is to limit the power of Congress to enact legislation. These limits may only be amended by a supermajority consensus.

The Courts properly make the final determination whether legislation violates the Constitution. Allowing a popular referendum to reverse such a determination and thereby waive a constitutional restriction essentially amends the Constitution by a transient popular majority - undermining the very purpose of a constitutional republic.

This is an exceedingly bad idea.

# posted by

Bart DePalma : 6:06 PM

Besides concerns about transient popular majorities oppressing minorities, federalism creates complications in the recall of judicial decisions that do not exist at the state level.

States could submit judicial decisions to a popular referendum, to be decided by a simple majority (or, I suppose, a 2/3 majority). The practice of any popular referendum, let alone a national referendum, is unheard of in our federal system. Do these proposals for recall of judicial decision propose a single national referendum? State by state referenda? Submission to state legislatures or conventions (as is the practice with Constitutional amendments)?

And if the judicial recall is decided state by state, how many states to overrule the Supreme Court? A simple majority? (I can imagine Prof. Levinson pointing out that a majority of states could be a distinct minority of the population). A 2/3 majority? A 3/4 constitutional majority? And if we can muster 3/4 of the states to overrule a Supreme Court decision, why not just amend the Constitution?

# posted by

Essayist-Laywer : 8:12 PM

You seem to be operating under the assumption that our "problem," as it were, stems from an overactive court. Given the myriad abuses of the Bush administration and the general impotence to check them, I'm not inclined to agree that the judiciary needs to be weakened to keep it from stepping on the toes of the other branches of government.

# posted by

ADamiani : 11:19 PM

Prof. Tamanaha:

There is another possibility, one initially proposed by Theodore Roosevelt and included in several state Progressive platforms: the recall of judicial decisions. The basic idea was that an invalidated act could be put up for a direct popular vote. If a majority voted in favor or the act, it became valid law.

A bit like amending the Constitution in California by referendum (and then, by just a bare majority). In my mind, a bad idea to put the framework of our system up for remodeling by dint of opinions of people with little training in law or knwoledge of what the ramifications of the change would be.

If the citizens could override decisions based on unconstitutionality by referendum, it would be akin to constitutional amendment by popular vote.

Cheers,

# posted by

Arne Langsetmo : 1:26 AM

Let's now hear from the originalists and the strict constructionists about the validity of judicial review.

The late Thomas Reed Powell's James S. Carpentier Lectures at Columbia in 1955 starts with the following:

"Those of you who recall how Topsy characterized her own genetic process may not be offended if I find a similarity between her origin and that of what we know as 'judical review.' Such review of acts of a coordinate legislative body or executive authority was not conceived in terms in any of the early, post-1776 state constitutions, in the Articles of Confederation, or in the Constitution of the United States. Like Topsy, it just 'growed'"

Perhaps over the years "judicial review" has overgrown into legal kudzu and needs to be controlled lest it ends up controlling the other co-equal branches of government.

(Note: Powell went on to discuss how "judicial review" came about in the first chapter (Establishment of Judicial Review) of his lectures.)

# posted by

Shag from Brookline : 6:59 AM

You conclude, I think undeniably, "The details of the recall can be tailored differently to match contemporary concerns, but the basic idea merits consideration."

From your remarks, I take it you have in mind (and Teddy had in mind) a single, nationwide popular vote in which a national majority would prevail.

That is, apparently unlike the enlightened layperson, I think you made it pretty plain that the proposal ignores the federal structure altogether and so bypasses the inherently anti-democratic allocation of equal power to the states and avoids the inherently and, of course, intentionally and equally anti-democratic obstacles of the amendment process.

But such a recall is only a more democratic (and praise God for that!) and simpler way to undo judicial outrages one at a time than working for amendments to the Constitution for each particular shocker as it comes along.

It's a mug's game, and puts the people arrayed against the Court in a position still very much weaker than theirs, and leaves us all a remedy very difficult and awkward to use, even if only a simple majority were required to overturn a Court decision.

While better than what we have now by a very great deal, I think abolition of judicial review of federal law remains the best solution, along with some such device as this to allow for the popular overthrow of intolerable decisions made in the course of review of state laws or acts.

Meanwhile, the presidency is another wretched feature of this slavocrat machine of oligarchical oppression we have all inherited from the 18th Century, our glorious republic. If you have elsewhere noted the case against presidentialism, I missed it and regret it.

By the way.

Did you intend the discussion of correction of this absurdity, the exclusive and unchecked power to nullify any act of local, state, or federal government lodged in the hands of a tiny claque of unelected and life-tenured cronies of presidents trusted by senators, to suppose for a basis only dismay at some of the results of their use of that power, and not in any degree outraged democratic principle?

It seems so. Or you would perhaps be less apparently sympathetic to the idea that the power so ledged is fundamentally legitimate and, at worst, subject to some occasional abuse that could be corrected by much less radical measures than abolition.

Just wondering.

# posted by

Anonymous : 8:20 AM

If you aren't going to have a supreme court, why bother with a constitution at all? What mechanism would you have in place to provide for the opportunity to review an unconstitutional law? Wait for the next election?

# posted by

Pacanukeha : 12:09 PM

I find it fascinating that Bart has come out in favor of his usual bugaboo, the unelected judge. Perhaps this is because the vast majority of judges are now "his" judges, so their activism is okie-dokie. Ah, well, just a preview of the next four years, after the Ds take over.

It is an interesting idea, and one could certainly make the argument that popular votes on certain kinds of legislation don't threaten the structure or the stability of the corporatist national security state.

# posted by

sparky : 12:28 PM

sparky said...

I find it fascinating that Bart has come out in favor of his usual bugaboo, the unelected judge. Perhaps this is because the vast majority of judges are now "his" judges, so their activism is okie-dokie. Ah, well, just a preview of the next four years, after the Ds take over.

I am surprised it took this many posts before someone took this shot.

I do not challenge judicial review. The alternatives are to have one of the political branches enforce the Constitution or not to enforce the Constitution at all.

I simply believe that judicial review needs to be limited to restrictions actually in the Constitution, rather than those legislated by the Courts.

In order to control outlaw judges who legislate from the bench, I would prefer impeachment or some form or recall ala the California recall of the rogue Bird Court over popular referendums seeking to indirectly amend the Constitution.

# posted by

Bart DePalma : 3:00 PM

Just for the record, the English Court does have judicial review jurisdiction over primary legislation (i) for conformity with EU law and (ii) for compatibility with the European Convention on Human Rights. What we do not have is originalism - described by an Australian Judge as "a quaint form of ancestor-worship".

# posted by

Mourad : 4:08 PM

Perhaps it's because I remember principled judges making it possible for African Americans to enjoy the same civil rights as the rest of us, or maybe it's because I fear the tyranny of the majority, especially during times of high emotion, but I don't think extending the recall idea to judicial opinions is a good solution. I have not been impressed by the use of recall in general, and I know how easily the US public can be inflamed by scare tactics. People generally come to their senses, given time, but by then they could already have made more bad law.

Besides, some of the most egregious judicial decisions are the most difficult to explain in lay terms. This leads to emotional pandering about law, which has given us opposition to some laws by people who would, in fact, benefit from those laws.

Given that both liberals and conservatives think bad judges (different bad judges) are undermining the country, I can see dueling recalls leading to more chaos and very little chance of reasonable resolution.

# posted by

Nancy Jane Moore : 9:47 AM

Bart said:
judicial review needs to be limited to restrictions actually in the Constitution, rather than those legislated by the Courts.

Since--as you well know--judicial review isn't actually in the Constitution, I find your response so vague as to be unresponsive.

# posted by

sparky : 12:19 PM