Tuesday, August 16, 2005

"The Left's Judicial Review Debate"

Mark Tushnet

That's the title of a post this morning at American Prospect. It mentions my recent exchange in Dissent magazine with Laurence Tribe and Jeremy Waldron. I don't want to re-hash the argument itself, but pick up instead on this comment: "this debate is rather perversely detached from any sense of realistic political possibility in this country, so it’s probably wise not to spend too much time dwelling on it. At the same time, the Roberts nomination offers the rare occasion for a fairly high-profile discussion of the ideal role of the courts in the United States and of the tricky dynamics and pitfalls of judicial politics. Liberals’ engagement with these issues can only be enriched by an understanding of the progressive case against judicial review."

The question I'd pose is why the debate is "detached from any sense of realisitc political possibility"? I'd suggest two answers. The snarky one is that it is detached, etc., because bloggers like Matt Yglesias and Sam Rosenfeld simply assert that it's detached, etc., thereby contributing to making it so. A less snarky way of putting the point is that what is a realistic political possibility is defined in part by what politically attuned people say is realistic. (In an earlier era a related position was properly derided as "crack-pot realism" -- that is, taking the limits of political discussion to be defined by what was politically "realistic" without recognizing the very limits within which the discussion thereby took place.) Yglesias says that he's an opponent of judicial review. So, perhaps he might actually engage a proposal like mine (a constitutional amendment that would, in effect, require Congress to specifiy that it wanted judicial review with respect to a particular statute, a class of statutes, or all legislation unless otherwise exempted from judicial review), and start working out the details.

The second answer is more directly political. It is that important constituencies of the Democratic Party believe (in my view erroneously) that their interests are advanced by the institution of judicial review as it now exists, and they have sufficient power within the Party to transform their sectoral claim into a broader claim that the political interests of progressives generally are advanced by the institution of judicial review as it now exists. Now, I'd be the first to acknowledge that figuring out the net contribution of the present institution of judicial review to progressive politics requires an extremely compliex calculation -- both with respect to the net contribution of actual instances of judicial review to progressive interests (the subject of a great article by Wojciech Sadurski in the Oxford Journal of Legal Studies), and with respect to the way the existence of judicial review functions in electoral politics. (As to that, my initial contribution to the Dissent dialogue argued that judicial review functioned as a stalking horse for the electoral mobilization of cultural conservatives against political liberals.)

As I've said, the political calculations and analysis are difficult and contestable. What's dismaying about the (non)-discussion of the left case against judicial review is that progressive proponents of judicial review mostly (a) hearken back to the glory days of the Warren Court, (b) point to decisions like Romer v. Evans and Lawrence v. Texas, without working through claims -- maybe mistaken -- about the impact of such decisions on progressive prospects in electoral politics (and therefore without working through the calculations about the net contribution of judicial review to progressive politics), (c) say that without judicial review the right to choose with respect to abortion would be threatened (without acknowledging the extent to which that right has already been eroded -- except by pointing out how limited access to abortions is today [and then failing to observe that the limited access that exists under the regime of Roe v. Wade is hardly a strong argument for the importance of judicial review in preserving access]), and, finally, (d) reverting to a basically religious belief that judicial review must be good for progressives.


The rules of law or the rule of men? I've always seen lawyers as defending means over ends, craft over teleology.
The Modern era in this country was steeped in the idealism of the 'advanced' intellectual. These days the public at large seems a little better equipped to understand and respond to the facts on the ground (and yes, the arrogance of the teenage philosopher is annoying.)
But throwing out the baby with the bathwater seems a bit much.

Well, what Yglesias says is "I agree with Tushnet and Waldron. I would like a system where any judicial decision can be overriden by Congress like they have in Canada. But I do not think this is going to happen in my life time, so I do not talk about it much."

How would it happen? If Congress tries to overrule Marbury v. Madison, presumably any remotely foreseeable Supreme Court will strike that legislation down.

So we are left with a Constitutional Amendment. That Amendment, if proposed, would inevitably be seen as being about abortion: without the abortion issue, there is no political constituency for the Amendment. But with the abortion issue, there is no way the Democratic Party can possibly support that Amendment, and no realistic way it is ever going to get ratified.

Or am I missing something?

It's finally beginning to sink in on the left, that the right's control of the federal government is not going to be some momentary abberation, gone before it can leave lasting effects. That the country is going to be deeply altered in ways the left does not like, before their turn at the helm ends.

Now, the left *could* have drawn from this a renewed appreciation for the virtues of limited government and federalism. The left *could* have finally come to understand that when you forge the government into a weapon with which to smite your enemies, they may take that weapon from your hand and smite YOU.

But, alas, no such lesson seems to have been learned. Instead what we see is the increasing rationalization that ALL limits to government power should be abolished, and the government forged into a weapon of such awesome might that all the right accomplishes in it's day in the sun can be erased the moment the left gets back on top.

Which it will, of course, since we all know that rule by the right is somehow unnatural.

Do I REALLY have to point out how stupid it is for the left to openly rationalize the abolition of all limits to Congress's power, at a time when your enemies control Congress? You guys claim to be the smart ones, show it for once.


The position is not that Congress should have no limits to its power. The position is that, at the end of the day, Congress has to be the institution that *decides* the limits of its power (subject to Presidential veto, etc.)

The alternative is a Court that decides the limits of its power. At least you can get rid of Congress.

Do you REALLY think there's a functional difference between Congress having no limits to what it can do, and Congress itself deciding from one moment to the next what those limits are? Do you REALLY?

Cut the BS. There is no difference. Congress will always decide that it has the power to do whatever it wants to do. You can count the members of Congress who are willing to say that something they'd actually like to do is unconstitutional on the fingers of one hand. And have fingers left over...

Inevitably, *some* institution has to decide what the limits of its own power is. Obviously, whatever institution that is creates the danger that that institution will accrue more power to itself than it is entitled.

The question is whether it is better to entrust that role to elected politicians or appointed lawyers.

What Yglesias is advocating is a system in which the Supreme Court can declare laws unconstitutional, but Congress (perhaps based on a supermajority) can override that declaration for a limited period of time.

That is (roughly) the system that prevails in Canada and New Zealand. Another alternative would be to give the courts the power to declare laws unconstitutional, but not have those declarations have any legal effect unless there is subsequent legislative enactment. That is the system that now prevails in the UK.

The difficulty with the US system is playing itself out now with the Roberts nomination. If your political objective is to criminalize abortion, your only choice is to try to change the composition of the Supreme Court. If abortion were a matter of normal politics, it would be legal in the places it is reasonably accessible anyway.

As the saying goes, "No man should be the judge in his own case." Congress should NOT be the judge of the constitutionality of it's own enactments.

The system of judicial review is already broken, courtesy of the 17th amendment. But get rid of it altogether, and we might as well not have a written Constitution.

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A few things. The amendment at issue goes beyond abortion. One considers things like the death penalty, criminal justice issues overall, and First Amendment matters. Complaints, sometimes on both sides, arise in respect to judicial judgments in such cases. One references Terry Schiavo.

Two, originally, the Supreme Court heard a lesser breadth of cases. State supreme courts could hold something unconstitutional and perhaps not be subject to review. Habeas was also reduced. So, one can restrain judicial review somewhat, esp. with a selective def. of the "exceptions" clause.

Third, Brett, your rejoinder is too cute. I'm not sure exactly how the 17A per se broke judicial review (as compared to say federalism) so much. But, judges decide their own case. What is Marbury and Cooper v. Aaron if not grants of powers to those who hand down the opinions? It violates the time old principle.

Finally, an amendment that allows Congress by a supermajority overrule certain constitutional rulings (they already can do this re statuory rulings -- by passing new legislations) does not in effect do away with a written constitution.

Not only would the privision be in the Constitution (!) but the supermajority requirement as well as perhaps tradition (impeachment is allowed, but rarely performed) etc. would limit its breadth. Canada, for instance, has not willy-nilly used its power.

On the 17th, I'd have assumed that was clear enough: Originally Senators were appointed by state governments, and thus acted as a check on the tendency to appoint federal judges who'd allow the federal government to ignore constitutional limits on it's power.

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The new measures would allow law-enforcement agents to intercept personal e-mails, text messages and possibly even password-secure websites used for purchasing and financial transactions.


If institutions are considered to have an interest in expanding their powers relative to other institutions (which, I agree, they do), then *someone* has to be a judge in their own cause. If Congress can't be a judge in its own cause, then the Court must be a judge in its.

I'm bad when it comes to giving advice and best at expressing myself.
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