Sunday, July 06, 2008

Overestimating the importance of the Supreme Court (and Justice Kennedy)

Sandy Levinson

David Broder's piece in today's Washington Post, entitled "Decider on the High Court," refers to "a quiet California lawyer [who has become] what may arguably be the single most influential arbiter of domestic policy in the land." He is referring, of course, to Justice Kennedy. There is certainly much to be said for the proposition that he has succeeded Sandra Day O'Connor as the "median justice" and is therefore the "decider on the high court," as in Boudimiene and Heller. But what is unacceptably hyperbolic is Broder's statement that this translates into a status as the "single most influential arbiter of domestic policy in the land." As Fred Schauer, building on the work of our own Mark Graber, demonstrated beyond reasonable doubt in the Harvard Law Review a couple of years ago, the handiwork of the Court is remarkably irrelevant to the "domestic policy" concerns of most Americans. Think today of energy, the housing crisis, the health care crisis, and immigration, and one discovers that the Court has astonishingly little relevant to say about any of these. The overestimation of the power of the Supreme Court, which usually includes Tocqueville's demonstrably wrong quotation from his 1835 book Democracy in America on all political issues turning into judicial issues, is one of the continuing scandals of American political analysis. Broder is, or at least was, a more acute analyst of American politics than many of his fellow reporter/pundits; it is a shame to see him say something so completely misleading. Why isn't it enough to say that the Supreme Court is an institution of some importance with regard to some issues and, therefore, that Kennedy plays a key role with regard to those particular issues (i.e., where the Court is otherwise evenly split on ideological grounds)?


Perhaps it would be more accurate to state that Kennedy "the single most influential arbiter of domestic (and now foreign) policy in the land" concerning any subject brought before the Court. Justice Kennedy has shown an increasing willingness to reverse the actions of the elected branches of our government and replace them with his own policy preferences.

Arbitrary detention at the will of the executive is not a "policy preference."

Charles I was mistaken on the same subject, as I recall. The Framers were under no doubt that his example was not to be repeated.


Rules for detention of prisoners of war (generic, not GC) is expressly granted by the Constitution to Congress and generally to the President as CiC.

Such detentions can only be considered "arbitrary" if there is no evidence that a detainee is an enemy. This was never the case.

Mr. Kennedy effectively deleted the provisions in Articles I and II which granted power in this area to the elected branches and rewrote Article III to arrogate this power to the judiciary for the first time in the history of the Republic in order to establish his own policy preferences in this area.

This was a breath taking inter-branch power grab. During the New Deal, the Court rewrote the Constitution to expand the power of the elected branches. However, this is the first instance of which I am aware where the Court arrogated powers expressly granted the elected branches to itself.

Kennedy and the liberal minority are a clear and present danger to the Constitution and its separation of powers. I cannot think of a more important reason for conservatives (and anyone else that loves the Constitution) to set aside their policy differences with Mr. McCain and elect him to replace liberal justices with conservatives and put Kennedy in the minority where he can do no more harm. Any mischief Mr. McCain can do as President can be easily reversed in the future. Court rulings are damn near forever.

Needless to say, I agree with anderson and disagree with bart depalma. That being said, however important the issue of how we treat detainees is to some of us, it scarcely ranks as one of the principal "domestic policy" issues that concerns most of the electorate at this time. Even if the electorate were justifiably concerned with the immense costs to our international reputation (not to mention the abject injustice) of some of our policies, it still would be only one among many other issues, and one of the very few about which the Supreme Court would have anything intersting to say. That's my principal point. One can agree with Mr. Depalma without making David Broder any more accurate in his overestimation of the importance of the Court.

Such detentions can only be considered "arbitrary" if there is no evidence that a detainee is an enemy. This was never the case.

Tell it to the D.C. Circuit.


1) The DC Cir. did not find the detentions in that case arbitrary. Rather, they demanded to see the original sources for the intelligence, which BTW is another historical first.

2) The DC Cir. should have properly deferred to the military as soon as it was presented the admissions of the detainee that he trained and lived with a terrorist organization. It is nearly inconceivable that a court should demand further evidence of membership than that. What the hell does it want? An secret membership card? There simply is no innocent explanation for receiving weapons training with a terrorist group.


Mr. Broder, like most members of the press, misunderstands the way the legal system works. However, he is hardly the only one taking notice of Justice Kennedy's rather expansive (ab)use of judicial power to overrule the elected branches.

"One can agree with Mr. Depalma without making David Broder any more accurate in his overestimation of the importance of the Court."


What a surrealistic thing to say.

Imagine how many hours and posts we could fill exploring all the many things we might say or do without "making David Broder any more accurate in his overestimation of the importance of the Court" -- it might almost seem like the entire purpose of human existence, if it wasn't just a trivial case of saying something silly about someone saying something silly about someone else.

OTOH, it lends a certain urgency to the morning's first cup of coffee...

The only way someone can agree with Bart is to be just as dishonest and / or irrational as Bart is.

There is no reason to suppose a causal relationship exists between agreement with Bart and what comes out of the mouth of David Broder.

When Bart says something like "rewrite the Constitution", all he really means is that the Court didn't agree with Bart's fruadulent neo-fascist drool.

While some many be overstating the Court's impact on domestic policy issues, I think this post understates them. It's not true that the Court has had "astonishingly little relevant to say" about the housing crisis and health care, for example. The Court's bank preemption decisions over the years, including most recently last year, have swept aside state protections in lending and arguably contributed to the housing crisis. And the Court's decisions on ERISA and on Section 1983 remedies have seriously weakened the guarantees of health coverage under both Medicaid and employee health plans. These effects are not as obvious as the effects the Court's more high-profile cases, but they definitely have significant impacts on domestic policy matters.

Any given decision might just as easily have a bad a result as a good one. We enact laws to implement policies, but the role of the courts is to make impartial decisions.

The courts have been doing banking cases for a very long time, which have been matters of high import and controversy from day one. What's important is that the legal process be fair and accurate; whether or not the policies we adopt are working or not is for the legislative branch to worry about, and the way they should do that is by enacting law, not by trying to force judges to conform to political agendas.

I agree that the Court's pre-emption doctrine is important (though it's subject to congressional override). I confess I'm not sufficiently up on those cases to recall their vote. How often are they 5-4 and divided along predictable ideological lines. My former colleague Ernie Young was bitterly critical of the ostensible conservatives on the Court who refused to question the application of current anti-state pre-emption doctrine. (He notes, incidentally, that many of the pre-empted laws are quite "liberal," so it may be that the conservatives prefer to maximize national power rather than take their chances with state decisionmaking (as we saw last week re punitive damages).

I of course agree that it is the job of courts to make (sometimes difficult) decisions in many important policy areas, and their decisions should not be viewed as illegitimate solely on the basis that don't fit a political agenda. I think the lines of decisions I alluded to have been and continue to be largely wrongheaded, but my point was simply that they have important consequences.

As to the votes, in ERISA remedies and Section 1983 cases they have typically been sharply and ideologically divided. Probably the most important were Mertens v. Hewitt (1993, ERISA decision, 5-4) and Gonzaga Univ. v. Doe (2002, Section 1983, 7-2 on result but 5-4 on the standard of review).

In preemption cases this is less so, with some moderate/liberal justices frequently supporting preemption and conservative justices occasionally opposing it. In this area I think much of the damage the Court is doing is unintended, with conservatives biased by hostility to tort law and regulation and moderates and/or liberals overly chary about uniformity and federal power, and both increasingly bound by sweeping precedents.

Ya, well this stuff surely does get complicated, and the issues in the cases you're talking about are pretty far afield for this layman.

But I started out as a bridge player, and in that realm a "results player" is someone who takes a line of play against the mathematical odds because it worked before. I'm also a programmer, and it's axiomatic that everything else being equal, it's a lot easier to make a mistake than it is to get something right.

And look at the history. Raging legal controversies over matters of profound national import aren't exactly a novelty, and neither are bad legal opinions in a variety of flavors. What's the lead time on developing a set of issues so it's "ripe" for S.C. review?

Policy per se is just not a legal issue... what I want to say is that what's generally (and properly) at issue are the limits of policy. For example, it's not for the courts to say if high taxes are a good idea or not, but how the math is done for whom under what circumstances is. Basing an income tax rate on income is one thing, basing it on race or religion is something else.

I've been thinking about all of this in the context of Boumediene. Initially I was a little bit disappointed because they didn't go quite as far as I'd hoped they would, namely all the way to affirming Judge Green's district court opinion that the detainees are covered by the 5th amendment. But the more I've thought about it, the more I'm seeing that Kennedy did it exactly right: he set the outer boundaries and left the details for the lower courts to work out -- because that's the process, and the process itself matters. The detainees are going to get some of the 5th, but maybe not all of it where some compelling reason exists for an exception. What the Bush administration wants is a rubber stamp; what Kennedy wants is sound auditing and accounting.

So it seems to me anyway.

Harper Jean Tobin said (3:03 PM) --
>>>>>While some many be overstating the Court's impact on domestic policy issues, I think this post understates them. It's not true that the Court has had "astonishingly little relevant to say" about the housing crisis and health care, for example. <<<<<<<

Another area where the Court has a high impact on practical matters is environmental policy. For example, Massachusetts v. EPA concerned the issue of whether the Clean Air Act requires the EPA to regulate the "greenhouse" gases that are of concern in the global-warming issue.

It is true that some of the Court's cases do not deal with practical matters -- for example, establishment clause cases mostly deal with a "right to not be offended."

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