Tuesday, November 09, 2010

The Return of Judicial Recall Fever Following a Century in Remission

Brian Tamanaha

A century ago, judicial recall fever swept the United States. California, Oregon, and Arizona enacted provisions that allowed the electorate to recall judges who had rendered unpopular decisions; other states across the country considered similar provisions, and a bill to allow the recall of federal judges was proposed as well. These bills were promoted mainly by organized labor as a means to unseat judges corrupted by corporate influence. Judicial recall provisions were hotly debated in bar journals and law reviews in the first decade of the twentieth century. The bar actively fought these bills as a grave threat to the independence of judges. After a decade of agitation, the judicial recall movement died out and the issue went away.

Judicial recall was a front page issue at the time. In 1911, President William Howard Taft refused to sign Arizona’s statehood bill owing to the judicial recall provision in its Constitution. The recall provision was removed to eliminate his objection, whereupon, in 1912, Taft signed the bill admitting Arizona as a state (the citizens of the new state of Arizona then quickly reenacted the recall provision).

Explaining his decision, Taft declared that judges are “not popular representatives.” “On the contrary, to fill their office properly, they must be independent. They must decide every question which comes before them according to law and justice.” Taft argued that judicial recall provisions will discourage people with legal integrity from serving as judges and will intimidate judges, thereby influencing their decisions:

Would not self-respecting men well hesitate to accept judicial office with such a sword of Damocles hanging over them? What kind of judgments might those on the unpopular side expect from courts whose judges must make their decisions under such legalized terrorism? The character of judges would deteriorate to that of trimmers and time-servers, and independent judicial action would be a thing of the past.

Taft also pointed out that the supporters of judicial recall were naïve to think that people would only remove judges who were violating their judicial office:

Nothing could be further from the ultimate result. The motive it would offer to unscrupulous combinations to seek to control politics in order to control the judges is clear. Those would profit by the recall who have the best opportunity of rousing the majority of the people to action on a sudden impulse. Are they likely to be the wisest or the best people in the community? Do they not include those who have money enough to employ the firebrands and slanderers in a community and the stirrers-up of social hate.

Now, fast forward a hundred years. Clear signs of the resurrection of judicial recall fever are evident in last week's elections—most obviously in the unseating of three Iowa Supreme Court Justices who declared a right to same-sex marriage.

Unlike the episode a century ago, the favored vehicle for judicial recall today is not specifically recall provisions. Instead, voters use periodic judicial retention votes to the same effect. The results from last Tuesday’s various judicial elections (links here) suggest that judges are now on notice that they will be punished in targeted campaigns by political opponents the next time they are up for a retention vote.

Interestingly, Taft believed that periodic judicial retention votes did not pose the same danger to judicial independence as recall provisions:

…In the election of judges for a long and fixed term of years, the fear of popular prejudice as a motive for unjust decisions is minimized by the tenure on the one hand, while the opportunity which the people have, calmly to consider the work of a judge for a full term of years in deciding as to his re-election, generally insures from them a fair and reasonable consideration of his qualities as a judge. While, therefore, there have been elected judges who have bowed before unjust popular prejudice, or who have yielded to the power of political bosses in their decisions, I am convinced that these are exceptional, and that, on the whole, elected judges have made a great American judiciary.

Taft’s benign view of judicial retention votes may have been sound at the time, but circumstances surrounding judicial retention elections have changed in at least three essential respects: 1) huge sums are spent on judicial retention campaigns; 2) this money is often supplied by outsiders; 3) these outsiders are often interest groups who seek to advance their causes through the courts. To name just one example, the U.S. Chamber of Commerce spends millions of dollars on judicial retention votes around the country to replace judges they perceive to be unfriendly to business. These judicial retention campaigns often engage in subterfuge—for example tagging the judge as “soft on crime.” And they often focus on a single controversial decision (same sex marriage) or type of cases (criminal cases) to paint an unfavorable, narrow, distorted picture of the judge.

In today’s atmosphere, regularized judicial retention votes can harm judicial independence in precisely the same way as judicial recall provisions because groups stand ready to whip up populist frenzy against judges whenever the next election is scheduled. (The remaining Iowa justices who are scheduled for retention votes in 2012 and 2016 are no doubt already contemplating their post-judicial career.)

It is easy to predict what will follow. Lawyers committed to the law will think twice about becoming a judge out of concern that they will be dragged into nasty, highly politicized election campaigns; seated judges will think twice about rendering decisions that might provoke the ire of organized interest groups (and will shy away from decisions in favor of criminal defendants that might be twisted against them in a campaign); more and more judges confronted with a forthcoming retention vote will choose to retire instead. As Taft warned, the character and legal commitment of people seeking the job may drop (see the Alabama justice who campaigned as the "tea party conservative").

A century ago the judicial recall movement generated great alarm and staunch resistance from the bar. Today, in the face of our increasingly de facto judicial recall system, the bar has been mostly mute. What explains the difference? In Law as a Means to an End, I argued that in the course of the 20th century, as the US legal culture came to see law in consummately instrumental terms, an instrumental view of law was extended to how judges are perceived as well. We have become inured to the notion that judges can be unseated by ideologically motivated opponents engaging in a strategic effort to shape and alter the legal decisions of courts. (Always, of course, under the banner of replacing "activist judges" with judges who will "rule according to the law.")

The last judicial recall fever broke within ten years. The current judicial recall fever is settling in for a long and debilitating stay.



What do you expect? Judicial independence is only valued by the public so long as judges are understood to be simply implementing policies chosen by the elected branches. Once they are understood to be making policy, OF COURSE the electorate is going to demand control of who becomes/stays a judge.

Brett, I can't figure out what you mean. Judges "implementing policies chosen by the elected branches" presumably means upholding their constitutionality and interpreting and enforcing them. But how is the opposite of that "making policy"? Is enforcing the Constitution to strike down an elected branch policy to make policy? In a sense, to hold that the Constitution prohibits discrimination against gays in issuing marriage licenses makes a policy of allowing gay marriage, but shouldn't we take judges at their word that their motivation is to uphold the Constitution rather than to make policy? Do you take them at their word when they strike down an elected branch policy that you agree is unconstitutional? Or would you overturn Marbury v. Madison on the ground that judicial review is the equivalent of an invitation to judges to make policy?

"but shouldn't we take judges at their word that their motivation is to uphold the Constitution rather than to make policy?"


Look, you can have judges impartially continuing to uphold the Constitution, the WHOLE Constitution, fixed in meaning until it's amended. Or you can have them flatly refusing to uphold it at all, in every case. Either way, you don't have judges making policy.

But if you've got them picking and choosing when the Constitution 'changes', and when it stays the same, they are, unavoidably, making policy. And they're not fooling anyone by claiming otherwise.

And, in fact, living constitutionalists defend those changes in 'interpretation' just exactly on POLICY grounds. But that makes judges into policy makers.

The public aren't as stupid as you might like. They can see that judges have assumed the role of policy maker, no matter that they hide behind the claim of just upholding the law.

And in a democracy, if you're making policy, you've got to be subject to democratic selection.

the WHOLE Constitution, fixed in meaning until it's amended

Do you really believe that that is either wise or possible? We cannot know what it means in many instances, such as whether a wiretap constitutes a search and seizure or whether separate but equal constitutes equal protection. Does the first Supreme Court ruling on a question constitute the "meaning," so that it may never be overturned? Or can a decision overturning an earlier one (such as the second flag-salute case) constitute the "meaning"? You're not making sense.

I wrote, "We cannot know what it means in many instances." Let me rephrase that. We can never know what it means, if by "means" we mean an absolute, definitive, fixed meaning. Every provision must be interpreted, including the provision that one must be 35 to be president. If the meaning of a provision, such as that one, seems clear on its face, that means that we all interpret it the same way (at present).

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The general public tremendously underappreciates the importance of the state supreme courts as battlegrounds. Billions of dollars in corporate profits can turn on whether the court has a "pro-business" majority - making the amount of money necessary to influence an election a comparatively minor investment.

Consider the infamous case of Caperton v. Massey, where a company which had been hit with a $50 million damages award spent $3 million to replace one of the state supreme court justices, whereupon the newly constituted court overturned the damages award by a 3-2 margin. While this is a fact pattern that would turn anyone's stomach (other than Justices Roberts, Alito, Scalia, and Thomas, to be sure), corporate-friendly justice can be purchased in a much more innocuous manner simply by electing judges known to be sympathetic to corporate defendants. Federalist Society membership is a fairly reliable calling card.

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"Wick-Burn" seems to be a chronic condition, as I recall.

How does our Constitution treat the federal judiciary differently than the elected President and Congress? Anonymous in his/her soon to be famous law review article in Constitutional Commentary "Our Boggling Constitution: or, Taking Text Really, Really Seriously" points out (page 674 of the Summer 2010 issue):

"Anonymous: Yeah, but the Constitution - read in an unBoggling fashion, that is - only has age limits for members of the executive and legislative branches, not the judicial branch. An eight-year-old might not be able to serve in Congress or the Presidency, but she could at least sit on the Supreme Court or the lower federal courts, at least if she can get a note from her parents."

Originalists, take note. Just imagine if Clarence had been nominated as a teen how much longer he could have served - and suffered from "Wick-Burn." Prilosec OTC doesn't help, does it?

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And, in fact, living constitutionalists defend those changes in 'interpretation' just exactly on POLICY grounds. But that makes judges into policy makers.

If this means that judges must consider the real-world effects of their decisions, then it is true. For example, in deciding Brown v. Board of Education, the justices considered that, in its effect on school children, separate but equal was not equal. But Brett makes a gross error in stating that so-called "living constitutionalists" (which in reality means everyone, because no one can interpret the Constitution purely linguistically) make policy in the same way that legislators do.

There is a middle ground between strict constructionists (Brett's imaginary ideal) and deconstructions (Brett's policymakers), which is explained in the writings of Ronald Dworkin, James Boyd White, and Richard Posner, among others. In fact, we all occupy that middle ground, as there are no strict constructionists or deconstructionists. This is not to deny that there are abuses and that judges sometimes make policy in Brett's sense; Bush v. Gore is the starkest example. The so-called strict constructionists are among the worst abusers because strict constructionism does not exist except as an intellectually dishonest excuse to make policy.

Let's give a constitutional "Amen" to Henry and especially to Gerard Magliocca's "no comment" post at this Blog 11/10/10 "The Impossibility of Constitutional Theory." Could Gerard be the Anonymous of "Our Boggling Constitution: ... " - or did he go to Yale? Henry? (I didn't go to Yale and anyway it's not I.)

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Anonymous is not I. I might have added to Dworkin, White, and Posner, the name Brian Tamanaha, because a theme of his Beyond the Formalist-Realist Divide is that there are not (and never have been) either formalists or realists (terms I could have substituted for strict constructionists and deconstructionists). All judges occupy the middle ground, with merely "differences in attitude and emphasis," to quote Beyond the Formalist-Realist Divide.

(Sorry to keep fixing this comment.)

A word of warning: I don't know if Balkinization will be shut down in Oklahoma as I will refer in my post to the way things are handled here in Germany - although despite all the talk about Eurabia, Sharia is yet not the law of the land. And, as one of the "acitivist" Justices on SCOTUS put it, it doesn't hurt to look across the fence.

Judges are not elected by popular vote and they do have tenure until the compulsive retirement age (actually 65). However, dependent on each state, a committee of representatives of the administration, parliament, the bar and the public at large selects them. Only the Justices of the Federal Constitutional Court are term limited (twelve years). There are many critics and valid criticisms, less of the democracy deficit in their selection and more about the opacity of the procedures, particularly when it comes to the positions of chiefs and constitutional courts. All sorts of shady party deals may go on, as generally, a qualified (super) majority is needed for the election.

There are no retention elections nor an impeachment procedure but there are disciplinary processes for malfeasance within the judiciary which are extremely cautious not to touch on the independence of the judge.

What is more important though is the following: Our Constitutional Justices can be quite robust and rough in the judicial review particularly of parliamentary activity. However, they only give guidelines for remedies, leave it to parliament to work out the details and allow some time for doing it. Thus, nobody would dare to complain about "judicial activism".

Like in the U.S., criticism of the judiciary originated on the left as judges tended to be more conservative than the general public. And one of the main critiques was the opaque and not very democratic selection process of judges. But today, given the alternatives, I wouldn't want to change it.

The Iowa retention election in a way is trying to redress the democracy deficit and in the flowery rhetoric of the Retention Guide it should strike the right balance between popular election and merit selection. It quite obviously was not introduced as a measure to curb illicit behaviour of judges as there are other remedies for that, either by impeachment or by disciplinary actions up to forced retirement by the Iowa Supreme Court (cf. Iowa Constitution, Article III, section 19, and Article V, sections 17 and 19). Thus, quite obviously it is thought as an instrument to "punish" judges for their decisions.

If the public is so interested in not having to endure judges for life, one remedy could be to have term limits without prolongation. This would safeguard against – what with Taft and Brian I find improper – influence on sentencing. I am aware as Brian points out that it would diminish the attractiveness of the job of judge or justice, as you could not make a career out of it. On the other hand, the legal community could make it short of an obligation to serve as a judge at least once, similar to the pro-bono rules. Of course, you don’t eliminate career considerations completely, as the judge probably would have an eye on his reintegration into a law or other firm.

I recall what happened to Rose Bird, Cruz Reynoso, and Joseph Grodin here in CA in 1986. I was a college student at the time. I thought that their removal by the voters was a mistake then and still do. Such removals set a terrible precedent, especially if one cares about judicial independence. In deciding cases, the last thing that we want judges to do is to take into account public opinion. That's what legislatures are for. I really don't think that this is a partisan issue at all. I would feel the same way if the voters had removed conservative justices from a state supreme court because of the decision that they rendered in a controversial case. Removal is a double-edged sword.

The public doesn't understand judging, and has no idea when judges really have abused their power. In any hard case, they'll have to exercise discretion but sadly, many voters hold the mistaken view that judging in appellate cases --thanks, John Roberts :)-- is like calling balls and strikes, when obviously, it's not. As such, whatever decisions they don't like they will see as abuses of judicial power that may merit removal from the bench.

ALL parts of the government need to be accountable to the people in a republic. There is no reason to believe that a judge granted unaccountable power will be any less prone to tyranny than an elected representative. Indeed, the judiciary's massive and utterly illegal rewrites of the Constitution and state constitutions over the past century strongly confirm my thesis.

There is an argument to be made that the judiciary needs some insulation from transient electoral majorities in regular elections. However, a recall provision would appear to do this because they are difficult to organize and do not have a great success rate with the voters. The court would have to engage in some really egregious act like the Bird Court's refusal to enforce the death penalty or the Iowa Courts fabrication of a right to same sex marriage for the voters to actually remove the judges.

We could use some check at the federal level as well.

Indeed, the judiciary's massive and utterly illegal rewrites of the Constitution and state constitutions over the past century strongly confirm my thesis.

Blankshot, what the fuck are you talking about?


Massive and illegal court rewrites of the Constitution and lesser laws are what Bruce Ackerman and sometimes Jack Balkin far more generously call "constitutional moments."

Massive and illegal court rewrites of the Constitution and lesser laws are what Bruce Ackerman and sometimes Jack Balkin far more generously call "constitutional moments."
# posted by Bart DePalma : 3:07 PM

Blankshot, your claims of "massive and illegal court rewrites" are more likely known as "delusional insanity".

Bart, I disagree w/ your characterization of both what the Bird Court did --only Bird herself voted to reverse death sentences in all of the appellate cases that she was required to review-- and that the justices "fabricated" a right to same-sex marriage, which is clearly not the case but based on a reasonable reading of it, which you obviously disagree with, whcih is fibne, but it doesn't mean that the right was made up by the judges themselves.

The more important point, of course, is that the judiciary is weak comapred with the other branches and your view would make it even weaker, which poses a serious threat to the separation of powers.


In Federalist 78, Hamilton offered the weakest branch argument in favor of the Constitution's lack of check on the judiciary in rebuttal for calls to adopt the British system where Parliament could overrule a court (something I would favor today in the United States):

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

In short, Hamilton is implying that the Congress and Executive could simply ignore a ruling of the judiciary if it wanted and thus the judiciary is the weakest branch. However, that was before the judiciary assumed the power of judicial review awarding itself final say as to what the basic law requires. Because the Congress and the Executive are sworn to comply with the Constitution, this makes the judiciary the strongest branch in its purview.

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Our former Backpacker with his spent tea bag returns to tell us:

"However, that was before the judiciary assumed the power of judicial review awarding itself final say as to what the basic law requires. "

Tea bag reading is not very reliable and usually soggy. But this is an attack on CJ Marshall and the once glory days of originalists/textualists. Should we revisit Marbury v. Madison and all the major Marshall decisions from 1801-1836? Are originalists/textualists attacking judicial review at this late date? If so, shouldn't they be attacking Bush v. Gore (2000) whereby the non-elected SCOTUS elected (5-4) George W. Bush President? And Citizens United?

The Constitution contains no specific provision for judicial review nor for judicial supremacy. While the concept of judicial review preceded the Constitution (as well as the Revolution), the same cannot be said for judicial supremacy. Upholding the Constitution is a duty imposed on all three branches of the federal government (as well as upon state officials). So how can there be judicial supremacy? But what is a workable alternative to judicial review? And can there be effective judicial review without judicial supremacy? So there develops the cry for judicial recall at the state level (but not available in all states). At the federal level, impeachment is provided for under the Constitution. But this is a difficult route for accountability. Originalism/textualism fails to provide answers. Should the judiciary be weakened to the level suggested by Hamilton? In the end, it is all so political, isn't it?


My point was not that judicial review is wrong, but rather that Hamilton apparently had not considered the possibility in his essay arguing that the judiciary is the weakest branch of government and did not require the checks everyone felt necessary for the elected branches.

I have not yet heard a credible argument why judges can be trusted with unaccountable power any more than elected representatives. For all of Sandy and Bruce's wailing about our executive dictator checked by elections, courts, and the power of the purse, not a single passing concern about a judiciary with lifetime appointments and without any accountability at all.

I take our former Backpacker's clarification:

"My point was not that judicial review is wrong, ...."

but he provides no elucidation on judicial supremacy with his suggestion that the judiciary may be the "strongest branch." While direct accountability via elections is not the case for the federal judiciary, public criticism is readily available from all quarters that can have some effect, especially upon elected Senators in their roles in approving appointments. And I'm sure the judiciary members who are so criticized are not that insensitive to the effect of such criticism. Why someone as young as Justice Thomas or CJ Roberts could resign and test voters by running for public office. While I - and you - may be a mere NOAGN*, cumulatively we may be effective with other NOAGNs.


Oh, come on, Shaq, the possibility of being criticized is not what we mean by accountability. Were that sufficient, we could have lifetime terms for Congressmen and Presidents, too, and only hold elections when they croak.

Judges are making policy, and the legal community hardly bothers to pretend otherwise. In a democracy, policy makers MUST be subject to election. They don't want to be elected, they can all become reliable originalists, (Yes, it IS possible.) and the call for judicial elections will subside.

Bart is literally the first person I have ever heard, in my entire life, argue that Hamilton had not considered the possibility of judicial review when he wrote Federalist No. 78.

To the contrary, whenever anyone wants to argue that the Founders intended for judicial review, the first language they cite is invariably the following: "It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

Who wrote that? Alexander Hamilton, in Federalist No. 78!

"reliable originalists"

what that means to you is opposed by a large segment of the population, who in some cases call for judicial elections from the other direction!

The term, of course, has no real meaning given there is a grand debate on the term. Given you think no member of the Supreme Court, e.g., is a "reliable originalist" consistently, it also is a pipe dream. You also, from all evidence, never thought it existed.

But, we don't have judicial elections on a federal level. Thus, constitutionally something is skewered. If, from 1789, federal judges didn't act as people free from policy, and we have no elections of federal judges (though we pick them via elected officials -- which apparently isn't enough), YOU (not for the first time) are the one upset with the current Constitution.

Given people are upset with the current Constitution, even when judges consistently follow it, policy or no policy, calls for judicial elections will continue.


You make a good point concerning Hamilton's discussion of the judgment element of judicial review. However, in his preceding discussion of the enforcement element of judicial review, Hamilton argues that the judiciary is the weakest branch because it relies upon the elected branches to actually recognize and enforce judicial judgments, implying that the elected branches need not do so.

Because the elected branches must follow the law and thus must recognize and enforce judicial judgments as to what the law requires, Hamilton's argument that the judiciary is the weakest branch and does not require checks fails.

FWIW, I prefer the adoption of the British system of the time of the founding where the Congress could overrule a Supreme Court decision and substitute its own interpretation of the Constitution. If we require a 60% supermajority to do so, I think that would provide a check on really egregious court decisions like Kelo without subjecting the Court to continuous second guessing.

Brett chides me with this:

"Oh, come on, Shaq [sic - I can't dunk!], the possibility of being criticized is not what we mean by accountability."

So I guess Ed Meese's (I hate him to pieces!) critique that started the originalism movement in the early 1980s did not result in accountability. Perhaps in Brett's eyes Ed was a mere NOAGN*. But Ed's "original intent" morphed into so many vagaries and varieties of originalism with the new originalism as the originalism du jour. Brett uses the term "reliable originalists" that as Joe has demonstrated do not exist other than in the form of Brett's pate (aka imagination). Brett should propose an Article V amendment requiring originalism (however defined) as THE interpretive tool of the Constitution rather that by means of his own policy amendment like living constitutionalism. Brett should not expect any Xmas cards from Justices Scalia and Thomas, as neither is a "reliable originalist."


Hamilton argues that the judiciary is the weakest branch because it relies upon the elected branches to actually recognize and enforce judicial judgments, implying that the elected branches need not do so.

But in fact, the elected branches need not do so. What is going to happen if the elected branches decide to ignore a Supreme Court decision? Will the Justice Police show up and clap them in irons? The only consequence would be political.

Since the Supreme Court enjoys respect from a broad swath of mainstream America, though, the elected branches are often hesitant to take such a step. That doesn't mean they have to do as the Supreme Court says; it simply means that they choose to.

From my perspective, your problem is that you want it to be too easy. You disagree with a great many Supreme Court decisions, and you want the elected branches to be able to cast them aside based upon the passions of the moment, with no stigma attached. I suspect Hamilton understood, however, that even though the judiciary could be ignored in theory, it would be a rare event.

Consider that your 60% supermajority requirement for overturning a Supreme Court decision suggests that doing so shouldn't be any harder than passing a regular old law in the first place (given the filibuster rule in the Senate). Indeed, your proposal would allow the Constitution to be effectively amended by 60% of Congress, with no checks or balances other than the next election.

By the way, if Congress decided to overturn Kelo legislatively by giving victims of eminent domain a federal cause of action, I suspect they could probably do so, notwithstanding the states' traditional jurisdiction over land use issues and the Tenth Amendment implications of overruling same. This wouldn't be the most constitutionally conservative thing to do, mind you.

Steve M said...

BD: Hamilton argues that the judiciary is the weakest branch because it relies upon the elected branches to actually recognize and enforce judicial judgments, implying that the elected branches need not do so.

But in fact, the elected branches need not do so. What is going to happen if the elected branches decide to ignore a Supreme Court decision?

Unlike the judiciary, there are checks on the elected branches.

If Congress refuses to recognize a decision, there is the checks of the President enforcing the law anyway and elections.

If the President refuses to enforce a decision, Congress can impeach him or her and there are elections.

That being said, I have often wondered what would happen if the President would say that I read the Constitution, it says nothing to support the court's decision, the court decision violates the constitution and I refuse to enforce an illegal ruling. Then Congress supports him and the voters reelect him.

The Constitution provides less cover for judicial supremacy than it does for judicial review.

That being said, I have often wondered what would happen if the President would say that I read the Constitution, it says nothing to support the court's decision, the court decision violates the constitution and I refuse to enforce an illegal ruling. Then Congress supports him and the voters reelect him.

That's what we generally call a constitutional crisis. If the elected branches are willing to take it to that point, and the voters support them, then they most likely win. The apocryphal story of Andrew Jackson's reaction to John Marshall's decision in Worcester v. Georgia has come down through the ages, after all.

There's nothing wrong with this scenario, in theory. The problem I have is that "constitutional conservatives" seem to want it to play out on a weekly basis. Every single time the Supreme Court issues a decision they don't like, "everyone should just defy it!" is the answer.

There's a reason that deference to the judiciary as an institution is deeply embedded in this country's norms, even though some would like us to treat every opinion as purely advisory. FDR's court-packing plan is often cited as a cautionary tale of how it doesn't pay to mess with the judiciary. But the less-discussed lesson is that FDR wouldn't have had to manufacture such a devious scheme in the first place if this country didn't feel so strongly that judicial decisions should be obeyed. FDR would have simply said "the court is wrong, we're going ahead with these New Deal programs anyway."

Good discussion so far, and civil. Not like the Volokh Conspiracy!

Whatever may have been intended, it is clear to me that (a) the executive branch is by far the most dangerous branch of government and I didn't have to read Ackermans' new book to come to that conclusion (b) that most lawmakers care little about whether the legislation that they try to enact is constitutionally permissible (c) it's not hard for the other branches of goverment to reign in the judiciary when it really wants to do so.

Those interested in the history of Art. III as it relates to judicial determination of the law might want to take a look at this article in the HLR.

I don't see why a reactionary like Taft is cited so uncritically. He was the ur-formalist in his opposition to progressive reforms as a politician. The Supreme Court Building is the marble palace it turned out to be because he wanted to elevate the Constitution and its interpretation into a civil religion beyond criticism. As Chief Justices, he started the conservative caucus meetings to discuss cases outside the conference that became the "old men" of the FDR era.

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