(C) Daily Kos
This story was originally published by Daily Kos and is unaltered.
. . . . . . . . . .
It's long past time to reject Judicial Supremacy and advocate seriously for Court reform [1]
['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']
Date: 2023-07-13
The concept of a constitution existed long before the American revolution. The American revolution was launched essentially arguing that the British were violating the American constitution repeatedly. The concept of constitutionalism and its enforcement rested in the community at large. There was no real concept of judicial review or judicial supremacy. At no point in the American revolution did anyone say, "Let us go to court and find out if the British actually have the power to tax us."
The American constitution was not an empty charter. It had a purpose and that was to create a democratic republic. It had a political goal. How one interpreted the constitution depended on what one thought the goals of the American republic were supposed to be.
It’s also worth noting that for most of American history the U.S. Supreme Court has functioned to protect the rights and privileges of the elites and the wealthy, mainly rich, white, straight Christian males who don’t like to pay the taxes that they owe.
Also, for most of American history how to interpret the constitution was an “all things considered” approach. Language, history, policy, precedent, and purpose were all examined. People did not argue over how to interpret the constitution. People argued over whether the courts have final say over the constitution (judicial supremacy) or not (judicial review). Those who favored democracy were supportive of judicial review and opposed to judicial supremacy. Those who were nervous about democracy supported judicial supremacy rather than judicial review.
As judicial review did emerge in the early days after the American revolution it came out of the notion that courts are agents of the people just as the other branches of government, the executive and the legislative branches, are. If a case comes before the court, it must interpret the constitution, but its interpretations are not superior or binding on anybody else in the system. Everyone does one's own interpreting and final authority rests in the community by how the community responds to the decisions.
It is important to note that Marbury v. Madison (1803) is a rejection of judicial supremacy. Judicial supremacy was put forth in the 1790s by the right-wing federalists and it was opposed by the more progressive Jeffersonians. The Jeffersonian view of judicial review was not that the courts would have no say, it was just that the courts' say was not final and binding on the other branches.
Judicial supremacy, different from judicial review, is the notion that, whatever the other branches think, whatever the community at large thinks, whatever the states think, the court’s interpretation is the interpretation that everyone else is supposed to follow.
That is different from stating that the courts can have their say, and their say can be enforced in the specific case that was decided, but if Congress disagrees, they can pass a law that is different from the court's decision, and what that does is effectively force the issue back to the community, and depending on how the community responds to the various things that are happening in the different departments of government will ultimately decide the issue. Marbury says that courts no less than the other branches have authority to interpret the constitution.
In 1800 those who supported judicial supremacy were defeated by the progressive Jeffersonians. The battles over judicial supremacy continued throughout American history. When the government is divided, the court tends to assert its authority. The court tried to do so again in the late 1810s and lost, and again in the Jacksonian period around the second bank and was defeated, and again around slavery in the territories in Dred Scott and was then defeated again.
Then after the Civil War and Reconstruction there was a period of divided government, and the court reasserted its authority and the idea of judicial supremacy re-emerged relatively strongly in the 1880s and 1890s and in the Lochner era (1905 - 1937) and was then defeated by the New Deal.
The conventional wisdom is that FDR's attempt to control the court, including court expansion, was norm breaking and generally a failure, but I believe that conventional wisdom is not accurate. FDR was elected with huge popular vote and electoral vote majorities to do something about the country's economic crisis. He acted immediately, and the court invoked a set of interpretive theories that were very outdated and stuck down the first New Deal.
FDR and Democrats began pushing back against the court making the argument that it was not the way that things should be done in a democratic republic, and in that battle proposed court expansion as part of an overall solution.
Court expansion was not supported by a majority of the population when FDR announced his proposal for it in February of 1937, but it has never been extremely popular whenever it has been proposed. It was not when Andrew Jackson expanded the court, or when Abraham Lincoln did.
Throughout the late 1850s, Lincoln argued that “the American people,” not the Supreme Court, were the true arbiters of the Constitution, and that the only way to defeat the proslavery judiciary was through mass political struggle. After Lincoln was elected in 1860, he, in his inaugural address, articulated this view in perhaps the strongest language he ever used:
[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.
Once in power, Lincoln and congressional Republicans “reorganized” the federal judiciary and expanded the court, adding an additional justice in 1863. More fundamentally, though, they simply set aside and ignored the proslavery precedents established in the 1850s. In June 1862, for instance, Congress passed and Lincoln signed a bill banning slavery from the federal territories, a direct violation of the majority ruling in Dred Scott. The court meekly acquiesced, recognizing that its political power was long since broken.
It’s also worth noting that the number of members of the Supreme Court was set at 9 by law in 1869 when there were 9 circuits and the U.S. population was just over 38 million people. Whereas, today there are 13 circuits and the U.S. population is over 330 million people. Therefore, today the expansion of the court could be justified due to the increase of the number of circuits and the increase in caseload due to the eightfold-plus increase in the size U.S. population.
FDR pushed the idea of court expansion (which, of course, was not a novel idea, as using the size of the court to control it has been done multiple times over American history). Court expansion was not the only thing that was being suggested in a really concerted campaign to raise popular awareness of what the court was doing and to raise popular opposition to allowing the court to continue doing it and hold the country back.
As a result that overall campaign, in the spring of 1937 justice Owen Roberts, who had been in the five-person right-wing majority, flipped his votes on a set of cases, including validating a minimum wage law (West Coast Hotel Co. v. Parrish which overturned Lochner v. New York (1905)), sustaining the National Labor Relations Act (NLRB v. Jones & Laughlin Steel Corp), and finding that the Social Security statute was constitutional (Helvering v. Davis). The court had upheld the second New Deal and allowed its laws to go into effect.
A few weeks later justice Willis Van Devanter, one of the Four Horsemen who opposed the New Deal agenda, who had also been in the five-person right-wing majority, announced his retirement and FDR replaced him with Hugo Black, so FDR no longer required expansion of the court to achieve his goals for the country, and, accordingly, FDR stopped advocating for court expansion at that point because his campaign against the court’s recalcitrance had been successful. It’s worth noting that a tactic may be not popular but at the same time can be very politically effective.
If one does not view proposing court expansion in isolation but views it as part of a larger campaign to control the court, it is exactly how it is supposed to work, and has worked in American history, which is when the court veered too far out of sync with the country’s values, mores, and zeitgeist, or was seen as illegitimate, the community responded, and the court retreated.
FDR believed in a vision that the constitution was designed to create a society in which the people are taken care of where there is a social safety net and other institutions exist to provide for the general welfare of the American people, but since FDR’s time articulation of that vision of interpreting the constitution has largely disappeared from the progressive community.
The court reasserted itself in the mid-1950s, but there was a difference then, because for the first and only time in American history there was a court, the Warren Court, that wanted to assert its authority that was progressive.
Up until the mid-1950s almost no one on the left thought that courts had the final say over the constitution. That is a second half of the 20th century invention that effectively begins with Brown v. Board of Education of Topeka (1954).
With the rise of the Warren Court in the 1950s and 1960s those on the left did something that they had not done before, and that is they embraced the doctrine of judicial supremacy and they came to see the constitution as the purview of judges and the word of those judges as final. During that era, the long history of politics around the constitution and around the courts began to collapse on the left, and both the right-wing victories of recent months and years as well as the muddled response from the left are, at least partially, the result of that collapse of progressive constitutional politics.
For the first time the debate shifted from who shall have final say over the constitution to how shall the constitution be interpreted, and that debate became the left versus right split.
The debate over how to interpret the constitution is the genesis of "originalism" which emerged in the 1970s and through 1980s as the right-wing theory of the constitution. The concept of "originalism" as legal principle started with Robert Bork and his 1971 article "Neutral Principles and Some First Amendment Problems." The notion of “originalism" was initially considered a fringe idea and did not really become a “serious” concept until the right-wing Federalist Society, founded in 1982, started advocating it, and members of the Federalist Society began sitting on the Supreme Court.
How to interpret the constitution is the debate that has been occurring since because the left, during the Warren Court, accepted that the courts should have final say over the constitution. However, it’s important to realize that the Warren Court hasn’t been in existence for over 50 years, but many on the left seem to act as if it is and still look to the court for redress. The court is not going to be much help to the left until the court is meaningfully reformed from its current configuration.
The right having fully embraced neoliberalism (deregulation, privatization, austerity, unfettered trade, etc.) interprets the constitution consistently with neoliberalism, effectively constraining government, and the theory of "originalism" supports that in many ways, although, the right also turns "originalism" around as an aggressive activist tool when it is convenient for them to do so.
Judicial review states that all branches of government, including the court, have a say in interpreting the constitution, but the court's interpretation is not final or binding. Whereas, the acceptance of judicial supremacy changes the way in which the court's interpretation is heard. With the acceptance of judicial supremacy, the court has moved from the people's servant to their boss, and the court's interpretation is given much more weight than it would under judicial review.
Under judicial review the people can interpret what their rights are by pushing back on the court in the ways discussed above.
The current court is seen as illegitimate by a large percentage of the American public not simply because many of its reactionary and extremist opinions (Bruen, Dobbs, West Virginia v. EPA, etc.) and doctrines (e.g. the “major questions” doctrine, “originalism,” “textualism,” etc.) it espouses are created out of thin air and are bat-shit crazy. The court is seen as illegitimate for many other reasons, such as it has two members who have been credibility accused of sexual misconduct, two seats were effectively stolen by Republicans, five members were appointed by Republican presidents who attained the presidency having lost the popular vote, multiple members have been captured by right wing billionaires and appear to have massive conflicts of interests, it adheres to no ethics code, etc.
The court’s power to have its opinions followed lies in the respect, legitimacy, and good will its has in the view of the American people. When the court is continually seen as illegitimate it is inevitable that its opinions will ultimately be seen as inoperative and will be set aside since the court has no enforcement mechanism. For example, had the recent potential default crisis gotten to the point where the court ruled that the treasury could not avoid default without action by Congress, the executive branch could deem any such opinion inoperable, set it aside, and continue to issue new debt to avoid default as the executive believes that the constitution requires.
In the final analysis the American people would determine if they want a default as ordered by the court, or if they want the executive to guarantee the full faith and credit of the United States of America, as in a democratic republic the final say over constitutional interpretation must rest with the people at large in how they respond to what political actors are doing.
I think that Biden and Democratic leaders should realize that serious discussion about Court reform, including Court expansion, can have desired positive results if it is part of on overall strategy of a campaign to raise popular awareness of what the court is doing, and to raise popular opposition to allowing the court to continue to try and take the country effectively back to the antebellum era.
I think that court expansion, jurisdiction stripping, or budget slashing, the tools that have been used for court pushback over American history, are no longer seen as being completely off the table as the Overton window for those reforms has seemingly expanded with respect to the current court, and could be implemented sooner rather than later, given the current attitude of the public toward the court, especially with all the recent revelations regarding the court, particularly if Democrats can retain the White House and obtain significant control of both houses of Congress in 2024 with enough Senators to abolish the filibuster with respect to Court related issues.
[END]
---
[1] Url:
https://www.dailykos.com/stories/2023/7/13/2172727/-It-s-long-past-time-to-reject-Judicial-Supremacy-and-advocate-seriously-for-Court-reform
Published and (C) by Daily Kos
Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified.
via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/dailykos/
