Tuesday, February 23, 2016

Why the Scalia Seat Should Not Be Filled...Ever?

Fascinating argument from poli-sci prof Jeffrey H. Anderson over at The Weekly StandardEight is Enough (for Now).  For those of us who oppose judicial activism, an even-numbered court that could stand athwart judicially imposed wheels of "progress" would be quite a welcome innovation.

Indeed, it would be a return to the original historical precedent!

To hear some tell it, the Supreme Court would be hamstrung if it had to function for a year or more without a ninth justice. What to do in the event of a 4-4 tie? This would not have been viewed as a problem, however, by America's Founders, who created a Court with an even number of justices—six. In fact, Marbury v. Madison, arguably the most important case in the Court's 226-year history, was decided by a six-justice Court.

The Constitution, of course, leaves it up to Congress to decide how many justices will serve on the Supreme Court. In 1789, Congress passed, and President Washington signed, the Judiciary Act. That law determined that the number of Supreme Court justices should be six. The Congress of that day was full of men who had been at Independence Hall two years earlier and had participated in the writing of the Constitution, so they presumably knew what they were doing. 
With a six-justice Court, a 3-3 opinion simply meant the Court wouldn't overturn a lower federal court ruling but instead would let it stand (or wouldn't alter the status quo in a case taken up by the Court as a matter of original jurisdiction). One effect of a six-person Court was that it took two-thirds of the Court (4 votes to 2) to declare unconstitutional a law duly passed by Congress or a state legislature. With a nine-person Court, 5-4 rulings are commonplace: In modern times, the trajectory of the nation has changed repeatedly on the personal whims of an Anthony Kennedy or a Sandra Day O'Connor. An even-numbered Court seems to be more conducive to judicial restraint... 
[T]he truth is that the Court worked far better in 1790 or 1806 than it did in 1973 or 2015. Judicial review is meant only to void acts that violate, as Alexander Hamilton put it, the "manifest tenor" (obvious meaning) of the Constitution. Justices are supposed to adhere to the clear-violation standard, which holds that an act must be unconstitutional beyond a reasonable doubt for the Court to be justified in voiding it. Justice Antonin Scalia adhered to the clear-violation standard of constitutional review.

Returning to an even number of justices, if only for a year, would offer an additional level of protection against those justices who are inclined to eschew the clear-violation standard and impose their own wills. With an even number of justices, overturning the actions of the other, more representative branches of government would require at least a two-vote margin. 
Not only will the Court survive just fine with an even number of justices for the next year or so, it may even do the Court some good.


JMS said...

Very interesting article, thanks for posting it to AC, other than the author’s assertion that, “Justice Antonin Scalia adhered to the clear-violation standard of constitutional review,” when his record clearly indicates otherwise.

But using “for those of us who oppose judicial activism” as a framing device is disingenuous at best. Liberals, conservatives, moderates, radicals et. al. cry foul about “judicial activism” (or Scalia’s “judicial putsch”), which translates as “legislating from the bench,” whenever they disagree with a Supreme Court decision.


Tom Van Dyke said...

Nice to hear from you again, JMS. I will read your [lengthy] linked PDF, but I would have much preferred you excerpted and summarized its argument for AC readers rather than point at your argument behind yonder internet curtain.

I would also have liked you to defend what I consider a slander on Justice Scalia's intellectual honesty. I have heard this vague charge from your [left] side of the aisle, but it's usually in bits and questionable pieces that I'm quite willing to put to the test before our readers.

And regardless of Scalia's guilt or innocence--which I have always found disingenuous, putting Scalia on trial instead of "originalism" itself---I find the concept of

“clear-violation standard of constitutional review”

well worth discussing, that the Supreme Court should butt out unless there's a clear violation of the Constitution and a clear majority. I think Anderson's argument is strong on every level--4-2 or 5-3 decisions are far less divisive for the republic than 5-4. Roe and Obergefell were oversteps, not in the rulings themselves, but in their arrogation of power never contemplated by the Constitution.

Tom Van Dyke said...

And that was always Scalia's argument, BTW. His views are often misrepresented.


The American people can make their will well enough known by creating new rights legislatively, or in the last analysis by amending the Constitution per Article V. One who believes that it falls to the courts to update the list of rights guaranteed by the constitution tends to be one who believes in a platonic right and wrong, which wise judges are able to discern when the people at large cannot.

In fact, it has occurred to me that this notion of an overarching moral law that is binding upon all of the nations of the world -- and with which all the judges of all of the nations of the world are charged with interpreting -- has replaced the common law.

Those of you who are lawyers will remember that, in the bad old days, that is to say, before Erie RR v. Tompkins [304 US 64, 78 (1938)], the courts believed that there was a single common law, it was up there in the stratosphere. Now, the state courts of California said it meant one thing, the state courts of New York said it meant something else, and the Federal Courts might say it meant a third thing. But one of them was wrong! Because there really is a common law, and it's our job to figure out what it is. So in those days, any common-law decision of one state would readily cite common-law decisions of other states, because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called "the brooding omnipresence in the sky" of the common law.

Well, I think we've replaced that with the law of human rights. Which is a moral law, and surely there must be a right and a wrong answer to these moral questions -- whether there's a right to an abortion, whether there's a right to homosexual conduct, what constitututes cruel and unusual punishment, and so on -- surely there is a right and wrong moral answer. And I believe there is, but the only thing is, I'm not sure what that right answer is. Or at least, I am for myself, but I'm not sure it's the same as what you think.

And the notion that all the judges in the world can contemplate this brooding omnipresence of moral law, cite one another's opinions, and that somehow, they are qualified by their appointment to decide these very difficult moral questions . . .

It's quite surprising to me, but I am sure that this is where we are. There really is a brotherhood of the judiciary who indeed believe that it is our function as judges to determine the proper meaning of human rights, and what the brothers and sisters in one country say is quite relevant to what the brothers and sisters in another country say. And that's why I think, if you are a living constitutionalist, you are almost certainly and internationalist living constitutionalist.


If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way that Europeans are - and nothing has changed. I dare say that few of us here would like our life or liberty subject to the disposition of French or Italian criminal justice, not because those systems are unjust, but because we think ours is better. What reason is there to believe that other dispositions of a foreign country are so obviously suitable to the morals and beliefs of our people that they can be judicially imposed through constitutional adjudication? And is it really an appropriate function of judges to say which are and which aren't? I think not.

Thank you. [applause]

Anonymous said...

Maybe its time for Congress to do some jurisdiction stripping.

Tom Van Dyke said...

Prophetic, as he often was. If the Court's gonna be this political [and Obergefell was the last styraw], then politics it shall be.


“One shudders to think what sort of political turmoil will greet the next nomination to the Supreme Court,” Scalia said in a 2004 speech to the Federalist Society. “The lesson is, in a truly democratic society – or at least the one in America – one way or another the people will have their say on significant social policy.”

However, Scalia also warned that the appointment process would inevitably become more politicized if Justices began making decision of more consequence to American society — particularly if those decision were about “moral questions,” like say, whether marriage should be an equal institution for people of all sexes.

“If judges are routinely providing the society’s definitive answers to moral questions on which there is ample room for debate … then judges will be made politically accountable,” Scalia said.

That was more than 10 years ago, but Scalia maintained his distaste for the injection of politics into the Supreme Court nomination and confirmation processes.

“I am not happy about the intrusion of politics into the judicial appointment process,” Scalia said in 2010. But, he said, considering the Supreme Court’s propensity for “deciding the nation’s morals,” Americans better get used to it, he said.

“As long as [the constitution] is subject to revision,” he said, “you should get used to controversial and absurd political theater when a person is nominated.”

And don't think Trump doesn't figure in here somewhere. If our system is to be nothing but the naked exercise of power, Trumpoids figure it's better to be the windshield than the bug.