February 09, 2005

Facts Shmacts: The Bully Pulpit Version of the SCOTUS

by Armen

I try to keep personal politics out of blog posts as much as possible. I'm not all that convinced that anyone out there really gives a rat's ass about my take on Roe v. Wade. At the same time, there are certain comments that just automatically evoke the shrill liberal knee-jerk reaction. Nothing accomplishes said effect faster than intellectual dishonesty combined with half-truths and lies. Now the following concerns a segment on Hannity and Colmes on the Fox News Channel, which happens to be the one media outlet that my mind is immunized against. But still...

On Monday, the guest on the show was Mark Levin, author of Men in Black. [Sidenote: Transcript of the show is on Lexis, I will only be pointing to the parts that pissed me off A LOT, but pretty much his entire presence on the show managed to get some sort of a negative reaction out of me]. His main thesis?

LEVIN: Well, if you believe in representative government, and you believe in limits on the three branches, and you believe in checks and balances, Alan, there are no limits on the Supreme Court anymore.

It's conferring rights on terrorists detainees. It's conferring benefits on illegal immigrants. It's saying that things like cyber-child pornography is constitutional and protected speech while protesting in front of an abortion clinic is not, or speaking in certain ways, broadcasting before an election is not.

The Supreme Court's all over the map because it's not following the Constitution. You have nine lawyers, six of whom are activists, five of whom who said they will confer with foreign law and foreign courts when interpreting the United States Constitution. If that's not lawless, if that's not undermining the Constitution and the rule of law, I don't know what is.

I'll let this speak for itself with the one caveat that if posting child porn is protected speech then this is news to me, and it just might help with *cough* my friend's case *cough*. Of course a more accurate statement is that restrictions by Congress on ALL pornsites were held to be too sweeping THREE TIMES. So the fact that one currently does not need a verifiable credit card to access porn will also help said friend. Anyhoo, moving on to the more substantive parts.

Levin basically wants Congress to have the power to override any decision of the SCOTUS by some super-majority, presumably 2/3. Anyone who has taken high school government, or the Naturalization exam probably knows that Congress can pass a bill to add or change a statute by a SIMPLE majority. And if the President malevolently sides with those evil justices, then Congress may override that by a 2/3 vote... hence the super majority. But of course Levin wasn't talking about the majority of the SCOTUS's workload (interpretation of statutes) but really those one or two cases each year that deal with constitutional issues with political overtones (think Affirmative Action and sex between consenting adults of the same sex).

This might shock some readers, especially those with a background in law, but apparently there is a process to change those rulings too. I hadn't heard of it myself until Levin inspired me to write to Congress to complain about this injustice. I was kindly referred to Article V of U.S. Constitution by an 18-year old staffer. He had apparently not passed his AP exams but felt vindicated. So as it turns out if 2/3 of both houses (super-majority) propose an amendment and 3/4 of the states (second super-majority) ratify said amendment, then it can overturn ANY decision of the SCOTUS. I wonder why Levin didn't consider this whopper. I like to think that he was just as clueless as I was, but then if I could do such research when thinking about his ideas, why couldn't he?

In truth I think believing too much in representative government is also not a good thing. Why bother with changing something when it's REALLY against the will of the people through the amendment process, when you can take a kind of a short cut? Plus his idea is bullshit since it assumes that Congress actually is occupied by representatives of the people rather than party hacks chosen to run in safe districts to further whatever interests they may have. (All details that the gentle masses don't need to be concerned about.)

I was actually more troubled by his justification for this idea.

LEVIN: Yes. But then again, let's look at the Supreme Court's record, at least three major cases. Slavery, it upheld it in 1856. Segregation, it imposed it and upheld it in 1896. The internment of Japanese-Americans, 1944. Why doesn't the Supreme Court get discredit for its wrong acts? Those are three massively horrific decisions by the Supreme Court.
Earlier, Levin criticized the Court for:
COLMES: Look, you talk about the endorsing of terrorism by the Supreme Court. Bob Herbert today in The New York Times wrote about a guy named Rasul, who was among thousands of people rounded up on 9/11. He was actually distributing food and medical supplies to Afghanis on 9/11. And he was held in isolation. He said whatever he needed to say to get out of isolation. Doesn't the Constitution protect persons? And doesn't -- we don't automatic presume somebody is a terrorist because they're rounded up?

LEVIN: A good question. First of all, I didn't say they endorsed terrorism. What I say is they don't seem to endorse the Constitution, which is why are they ruling on this in the first place? In the 1940s, there was a case involving foreign enemy combatants who were outside the United States, just as Rasul is, and the Supreme Court said, "You know what? You don't get to come to federal court. That's a commander-in- chief's job."

Suddenly, this summer, all of that changed. I don't want to hear Rasul's defense attorney crap, to be perfectly honest with you. Most of these guys are barbarians. We can put out a little bit of information about what he was saying and how he didn't mean what he was saying, but that's not the Supreme Court's decision. It's not Mark's decision or Alan Colmes' decision.

COLMES: Right.

LEVIN: The Constitution leaves that with the executive branch.

COLMES: But when you say the Supreme Court endorses terrorism...

LEVIN: I didn't say it endorses terrorism.

COLMES: Or that it endorses terrorist rights, is what it says on the flap of your book.

LEVIN: It confers terrorists' rights -- it certainly does. Due process, right? We had a federal judge last week who ruled that the due process clause of the Fifth Amendment of the Constitution, that applies to us, now applies to Al Qaeda and Taliban detainees. Nobody believes that except the judges.

Alright, so, he wants Congress to have power over the SCOTUS as the representative body, and the President to have power over the SCOTUS as Commander-in-Chief. Well, upon closer examination of his critique of the Court we see something peculiar.

Dred Scott v. Sandford: This case is about standing. Specifically, the Court found that as non-citizens, slaves did not have standing in Federal Court (ironically, this means they had no standing for habeas petitions). CONGRESS (the representative body) had failed to extend citizenship to slaves or former slaves (and if I'm not mistaken even descendants of slaves). Same Congress also excluded the Chinese, among many other racist immigration/citizenship laws years later. But the 14th Amendment deals with that by proclaiming, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The SCOTUS applied this even to the children of Chinese immigrants despite an act of Congress. Hmm.

Plessy v. Ferguson: Hardly implemented segregation. What's ironic is that conservatives harp on the judicial activism in Brown v. Board of Ed, the case that overturned Plessy. Which is a great segue to the next topic...overturning bad decisions.

Rasul, meet Korematsu: In WWII, the SCOTUS deferred to the Pres because we were in a war. One result of that is the Korematsu decision which Levin holds against the Court, the other is the Eisentrager, which Levin criticises the Court for partially overturning in Rasul. And don't forget Dred Scott, denying access to Federal Courts CLEARLY has been a great idea in the history of our jurisprudence. Hmm. As I said, facts have no place when you have an agenda. But I think Hannity said that much more eloquently:

HANNITY: ... studying our history. What I like about what you do in the book, Mark, is you make it really readable and understandable for those people that aren't lawyers.


Some post-script random bull shit from Levin (personal favorite: arguing no right to privacy exists because you can't commit murder in your bedroom. Classic. I wonder if that question will ever show up on the LSAT):

HANNITY: There's a lack of accountability, too, because we're talking about lifelong appointments here. As we now go into this year, I think by every objective measure we're going to have an opening or two in the court in the next year. And this is a big battle here. Doesn't this come down to what the left cannot accomplish legislatively, what they can't accomplish at the ballot box, this is where they have put all of their resources, their energy? Explain.

LEVIN: Yes. The left -- present company excluded, but I believe it - - they are able to move their agenda forward through the unelected branch. That's why they are going to fight to the bitter end. They are going to continue their filibusters. Any Bush nominee that comes up, they are going to try and smear. It doesn't matter if they lose senators in red states over it. That's the one branch of government they are comfortable with. It's the one branch of government that, come one election or another, continues to press their agenda.

February 9, 2005 05:13 PM | TrackBack

Article V isn't much of a response to the court's most political cases. The Supreme Court resolves those cases only when there is enough support for its solution that the opposition cannot muster enough votes to get 2/3 of congress and 2/4 of the state legislatures to create an amendment. The Court's power lies in the fact that so long as it sticks to picking winners in ongoing political debates, it can't be overturned except by the Court itself.

Posted by: a law professor at February 9, 2005 07:03 PM

There's been an interesting debate in the Yale Law Journal on this issue, albeit at a much more intellectual and abstract level, following an article by Bruce Ackerman titled "The Emergency Constitution" in Volume 113, Number 5, March 2004. For what it's worth, there are serious proposals on the table which would give Congress and the President some sort of super-majoritarian power to set aside the law in times of existential danger. However, Levin's book doesn't come anywhere near that level of seriousness. Here merely issues a polemic against judges that we've heard time and time again: they're antidemocratic, elitist, liberal, activist, yadda yadda yadda.

Well, I think that Associate Justice Robert Jackson said it best as a lawyer during WWI, long before his appointment to the bench: your rights and mine are only worth what some lawyer is willing to stand up and argue for them. He was actually only half right -- they're really only worth what some judge is willing to say about them. Other than that, our rights under the Constitution are mere empty promises.

Posted by: Phil Carter at February 9, 2005 08:24 PM

Thanks for the pointer Phil, and I agree there are some serious arguments to be raised about the power of the Court, possible solutions, etc. I would have mentioned that I think there are such points to be made if I didn't have to run to class (where we don't have wireless). So thanks for nothing that.

As to the law prof comments, I wasn't seriously advocating the amendment process as a check on the Court. But I think it's silly to use representative government as a justification for such a scheme when it's clear that whatever the Court decides, there is at least a significant minority of the people who support it (hence no amendment to overturn the political decisions).

Posted by: Armen at February 9, 2005 09:11 PM

Armen writes: "I think it's silly to use representative government as a justification for such a scheme when it's clear that whatever the Court decides, there is at least a significant minority of the people who support it . . . "

Why is that silly? If the Supreme Court enters political debates and picks winners that it likes, declaring the losing side unconstitutional and barring any legislature from ever adopting it unless the Court says so, what's wrong with a political check on the Court?

Posted by: law professor, again at February 9, 2005 10:11 PM

Nothing, if you're a British MP, or if you believe that representative should mean "like a lot of the people and not just whoever is in power" (to use the technical jargon).

Sarcasm aside, this is actually getting to the more substantive side of the arguments (which I have not read as much as I admire Phil). But if you think there's any non-arbitrary (and coincidentally non-politically motivated) reason that a 2/3 majority in each house (but not a 2/3 + 3/4 of states or a simple majority on the opposite end) ought to be sufficient to overturn any court decision, I'm all ears. But to say that we need this because currently the people have no way to change a court decision is wrong. There is a way, you just don't like that way for lack of expediency, or perhaps it represents TOO MANY of the people (my original point).

Posted by: Armen at February 10, 2005 01:41 AM

I'm not necessarily defending this guy's proposal. He can be exactly right in his description of the problem without having a very good answer to it. On the description of the problem, I think this guy is basically right -- the Justices just make stuff up, pretty much out of thin air, and we're stuck with whatever they happen to come up with. They are philospher kings more than judges in the traditional sense. Do you disagree?

Posted by: law professor, one last time at February 10, 2005 02:16 AM

In a word, yes...I disagree. I'll add more tomorrow morning. And please, don't say such things as last time. :)

Posted by: Armen at February 10, 2005 02:53 AM

OK I'm back, sitting in Civ Pro with great wireless reception.

I said I did not agree that judges make things up out of thin air or that they are philosopher kings. That's what law professors do. But I'm just begging the question.

I don't know what it means to make things up out of thin air. Are all public policy concerns to be left out of jurisprudence? Well, even at common law that wasn't the case. It probably won't be the case so long as we remain a common law system, as opposed to the Code. If judges in France decided cases as we do, then yes, there'd be cause for alarm in France. Judicial innovation is a part of our system and I don't see it as a cause for alarm (until they decide political cases against my position).

Are there decisions that rest on shaky legal grounds? Yes. Stepping out of the liberal dogma for a second, I'll be the first to admit that quite a few landmark cases are legally shaky (cough Roe v. Wade cough). On the other side, Scalia's dissent in the Independent Counsel statute points to flawed reasoning in the conservatives. But I just fail to see these as some philosophical ruminations.

But again, I'm ignoring the obvious. In Hamdi, Scalia's dissent gives the perfect example of the strict constructionist perspective (US Citizens have an absolute right to habeas petitions unless revoked by Congress), while Thomas's dissent has the public policy elements (courts need to defer to the executive at a time of war). I wonder which opinion Levin prefers? Was the middle-ground opinion the work of philosopher kings? I ask these only to illustrate that political decisions out of thin air have their support on both sides. Adding a congressional approval process to such decisions will do nothing more than eliminate one side of those decisions. Not very democratic or representative if you ask me.

I'll ignore the independent judiciary arguments for the time being.

Posted by: Armen at February 10, 2005 01:02 PM
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