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Tuesday, June 02, 2009

Don't Do This, Douthat

Ross Douthat hasn't been on the NYT columnist roster very long, but he's already justified his hire with some serious and thought-provoking columns. Props where due: the NYT conservatives, Brooks and Douthat, kick the living shit out of the partisan hacks (Kristol, Will, Krauthammer, Broder) now employed by the WaPo.

Today's Douthat takes up the Supreme Court and its activism, making a surprise admission that activist justices come on both sides of the aisle--although he does cherry pick his case a bit by focusing on Stevens (the most activist of the moderates) without noting that, as a whole, the five on the right have been far more activist in their willingness to overrule legislative decisions than the four in the middle (our Court having no real "left"). His data on the Court overturning state statutes is also a bit misleading. It shouldn't be surprising that the number of state statutes invalidated by the Supremes rises dramatically from the pre-Civil War era. After all, there are a lot more states now, and the Reconstruction amendments that followed the CW greatly expanded the federal government's responsibility for preventing abuse of power at the state level. Still, his case has a refreshing honesty to it, at least in its formulation of the issue and problem: a Court that sees itself as a kind of super-Senate.

His solutions, however, are a mixed bag. I'm sympathetic to the idea of term limits for justices, although I'd prefer a 15-20 year window rather than Douthat's 12. Justice is a job that one can mature into, and as much as it pleases me to think that Clarence Thomas would have already rotated off the highest court to pursue his lifelong ambitions as a porn star (or FOX commentator, but they're hard to distinguish), it seems to me that you also lose some very good justices who are just hitting their stride--a Stevens or a Brennan who get better with age.

The more problematic idea is a 6-3 supermajority to exercise judicial review. As a general rule, I think supermajorities are bad ideas, the Senate filibuster and California budgets being the most obvious examples. Now, in some ways the perils are different here. After all, rather than legislative stalemate, what we'll get is legislative status quo, which is much better. What if, however, a 5-4 majority ruled an act unconstitutional but still "lost" (under a 6-3 requirement). What would the controlling decision be? The minority? Maybe the lawyers here can comment, but this seems like a recipe for confusion in lower courts.

The bigger problems are the political ones. Douthat pushes his idea as a compromise b/w liberals and conservatives, both concerned with an imperial judiciary. To sweeten the deal for his side, he says that this 6-3 rule would apply not only to federal legislation (disliked by conservatives) but also state legislation (viewed warily by libs). Looks like a pig in a poke. States have been more often subject to federal review b/c (a) there are more of them, and (b) they have lower quality office holders and are generally more prone to abusing the constitution. Congress and the states are not equals. The founders were nationalists, the Reconstruction Republicans were nationalists, the New Dealers were nationalists, the constitution is a nationalist constitution. I think part of Douthat's calculation is that, although conservatives have an unreliable 5-4 majority on today's Court (and for the foreseeable future), they have a rock solid, unswayable 4 man minority who could prevent any federal interference with the states--except, of course, on those issues that the cons wanted to cherry pick for ideological purposes (medical marijuana? gay marriage?).

More seriously, Douthat speaks only of Congress and state legislatures. What about the executive? The most critical need for judicial review over the last decade--and the subject of several of the 5-4 rulings Douthat decries--involve the expansion of executive power. This was a crisis under Bush, and has not completely disappeared under Obama. If the 6-3 rule were applied to judicial review involving the executive as well, the cons would have an unbeatable 4-man minority to prevent any challenges to creeping Cheneyism. That, I'd say, would be a deal breaker.


At 12:43 PM, Blogger Number Three said...

Broder is a bi-partisan hack, as in everything he writes is about how great being bi-partisan is!

Nice post. In general, supermajority rules are a bad idea, as you point out. This is not a new idea, btw. I agree with all that you say and would like to add that the idea assumes that we know when the Court exercises judicial review. Would it apply when the Court applies the 'constitutional doubt' canon of construction, for example, preferring one interpretation of a statute to another because the alternative would be finding the law unconstitutional? Is that the exercise of judicial review? The Court majority says that an alternative reading would be unconstitutional . . . but it doesn't strike anything down.

I am a little skeptical about the state-versus-federal comparisons. The Court's functions are very different vis-a-vis the states and the federal govts. In the federal system, the Court is the enforcer of national norms. States are prone to deviate from those norms; it's partly a function of numbers, but numbers plus diversity.

I'm not even sure that it's a function of 'lower quality' office-holders (the comparison group is Congress, people, and we recently had a VP who based his policy decisions on "24"). States have differing policy views; sometimes the differences are malignant (white supremacy), sometimes they are relatively benign (medical marijuana, same-sex marriage). Not really a 'quality' issue.

In the national government, the Court's primary function is, as I believe has been said somewhere before, the umpire in interbranch disputes. Now, of course, the umpire is also a player (City of Boerne v. Flores, anyone?), but that is a complication not a refutation of the point.

We tend to blur these two together because 'activism' is activism, but as I've said many times, the Court's role in enforcing national norms is much more important than it's role as the umpire of interbranch disputes. There is usually a way to resolve an interbranch dispute other than a Court ruling. Don't like the Line-Item Veto? Then repeal it! Don't like military tribunals? Then pass a law! Elections matter, too. Bad policy has consequences.

But things are a little different at the state-level. Indeed, states can run roughshod over their citizens in ways that citizens may have very great difficulty reversing. Think Baker v. Carr. Or even a Kelo type of case.

You could give up judicial review at the national level and not really lose much. In fact, give me an example of a case that strikes down a federal law that really, really mattered. I'll wait for your answer.

But state law . . . well, giving up judicial review there is a big deal. The two shouldn't be equated.

At 12:48 PM, Blogger Number Three said...

Oh, I have more! If you hold to my view that all Court fights are ultimately about Roe (this only applies post-1973) . . . it's interesting the Roe itself was 7-2, and Casey was 6-3. So a supermajority rule wouldn't have mattered in either case.

At 12:51 PM, Blogger Number Three said...

Yet more. TMcD's point about the solid four votes is a good one, but I am always confused that conservatives even think that they are opposed to the use of judicial review. (I know they think that they are, but they aren't.) Hell, George Will has written at least two columns this year arguing that federal intervention in the economy under the Obama administration violates the 5th amendment. That's a call for judicial activism, people. But it's couched as "standing up for the Constitution."

At 3:25 PM, Blogger tenaciousmcd said...

Good points, 3. I'm glad you brought in abortion--after writing this post I realized I needed to discuss it. If you break down RD's "deal" I think it amounts to this: we cons will give up on our dream of restricting Congress' control over the economy if you libs give states a free pass on de facto banning of abortion. That's a trade I might consider, but few Dem women would.

On the practicality issue, you raise the kind of quality points I had hoped for. I'd add this: what do you do with 5-4 decisions that mix judicial review with ordinary interpretation? What happens to those decisions, especially if the reasoning for each is closely intertwined? Do you need to accept the decisions as only partly authoritative, much as in a plurality ruling? It seems like a recipe for messy--even incoherent--law.

At 3:27 PM, Blogger tenaciousmcd said...

Oh, and I disagree on Broder, for whom "bipartisan" is code for "DC establishment Republican" (vs. movement con).


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