"It would have increased turnover on the Court, reduced the average age of justices, made an appointment to the Court less prestigious, and made the justices more cautious about bucking strong political forces, because they would have learned that Congress was willing as well as able to rein them in. We would probably have been spared the excesses of the Warren Court, which turned Roosevelt’s idea of the 'living Constitution' on its head: where Roosevelt wanted the Court to stand aside so that the government could deal with the distinctive problems of modernity, the Warren Court responded to the surging crime rates of the 1950s and 1960s by increasing the rights of criminals."
That's snazzily put, but it's really saying the same old thing about judicial restraint. Deference to legislatures in FDR's day served a liberal goal, and the activists were the conservatives. In later decades, judicial activism was mobilized for liberal ends. Over time, conservatives and liberals have used both judicial restraint and judicial activism to suit their ends.
The more fundamental question is whether we'd be better off if the judicial branch were subordinated to the political branches. I would think that conservatives and liberals alike — the full range across the political spectrum — benefit from a system of separated powers with 3 branches that are well-balanced and strong within their own spheres.
We can fight forever about exactly what the 3 spheres of power really are and what constitutesproper balance — when courts should act and when they should defer to the democratic branches — but I balk at the invitation to be wistful about the missed opportunity to weaken and subordinate the courts.
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Judge Posner is slipping. Sad.
Without independent and strong courts with effective veto power over the administrative and legislative branches, there is no protection from the two branches in cahoots becoming dictatorial. The court provides a powerful check on legislation and administrative fiat. Without the courts as they are, we might not be a republic today.
Snazzy? My mom said "snazzy."
Judge Posner is wrong about a bigger Supreme Court having a lower average age. The average age would be lower at the time when the Court was increased, but over time the same average age would reappear. In general, the long-term average age is
(average age at appointment)+.5*(Number of years lived after appointment)
This formula gives the same answer regardless of how large the SC is.
No one said there would be math!
WV - coubeat - FDR's packed court coubeat up your original 9.
That seems to be a different kind of activism or restraint than what modern conservatives are arguing for. It seems to me, what conservatives want is for the court to be vigorous in opposing government overreach, and restrained in redefining our understanding of the Constitution.
Thomas Sowell pointed out a decade ago that a Court showing judicial restraint might actually look very activist, as it turned over the activist policies of its predecessors.
The three branches do rather well when they stick to their constitutional mandates. You know, back before President Wilson.
Trey
David said...
Judge Posner is wrong about a bigger Supreme Court having a lower average age. The average age would be lower at the time when the Court was increased, but over time the same average age would reappear. In general, the long-term average age is
(average age at appointment)+.5*(Number of years lived after appointment)
This formula gives the same answer regardless of how large the SC is.
Wrong, because David completely misses the point that FDR's "packing proposal" had a mandatory retirement/non-voting status provision. I think FDRs proposal was 70 or when a SCOTUS judge was so physically or mentally unfit as to be removed from voting status (like Reinquist, Thurgood, and Douglas were). And this would comport with other Fed employee policy. But - to ensure independent, judges could elect to stay on in Emitrius status.
This "Emetrius" status has been emplaced a long time and passed court review when it comes to lifetime tenured professors in state and Fed univeristies (inc. service academies) and lower court justices. They keep full pay, but are out of voting, hiring decisions, etc.
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Ultimately, though "judiciary worshippers" cast it as a huge victory for the Mighty Judges Above all the rabble and their elected officials - FDR had his own victory.
For the proposal and its consequences sent a shock wave through Justices that hated FDR and thought they were so powerful and unaccountable they could mount a rear guard action to sabotage any change from the "good old days". Once they realized how threatened they were by the fed-up FDR and Congress - they immediately backed off the destruction of their anti - New Deal rulings. And hastily came out with decisions that accepted that the voters did have a right to have the officials they elected guiding the country.
The "Come to Jesus Moment the reactionaries on SCOTUS had" ?It was called "The Switch in Time That Saved 9".
Bush could have named 4 Justices to replace Stevens, Ginsburg, Souter, and Scalia. He could have stopped Reinquist from his year away from the bench but still voting and named a 5th replacement.
Scalia would have been a loss, but Scalia has said he would be even more happy if he could write, do lectures, and be free to talk...and Emeritius status wouldn't bother him.
I balk at the invitation to be wistful about the missed opportunity to weaken and subordinate the courts
You're a law professor. You would say that. But if the Founders words are anything to go by, they expected the courts to be weak and the Congress, strong. The modern strong court telling eveyone else what to do is, well, modern.
Without independent and strong courts with effective veto power over the administrative and legislative branches, there is no protection from the two branches in cahoots becoming dictatorial.
There is no such protection now.
For one thing, the courts are creatures of the executive (which appoints them) and legislature (which confirms and funds them). The federal courts can be relied on not to undermine their fellow members of the Federal government.
Even if they did possess any independence, Congress can impeach them or the President and Congress can ignore them. The independence of the courts is am illusion.
The role of the court is to allow the political class to enact unpopular laws (e.g. Roe v wade) or repeal popular ones without too much backlash at elected politicians from the public. "I don't like it either, but this is what the courts said!".
Power hates accountability.
I agree with Posner. Had FDR packed the court you'd have seen less court worship in the 50s and 60s. You still have phony conservatives like George Will mooning about the Court being the "bulwark of the Republic." but its BS.
BTW, 2/3 of the Senate allied with 2/3 of the House can do pretty much anything. One reason why the SCOTUS was a non-factor in the Civil war and Reconstruction. When the power elite wants something done, the SCOTUS never stands in their way, since the Congress can cut their pay and perks and appoint new members anytime they wish.
And of course, the SCOTUS is usually made up of the same Power Elite Types so the Constitution is usually is read the "right" way - the original or plain meaning be damned.
I view the court packing dispute under FDR as a constitutional fight over which branches of government have responsibility to interpret and define the meaning of the Constitution. The power of the Supreme Court to rule on constitutionality was long established in the 1930's, but it was still not clear whether the Court had exclusive power in this area, or penultimate power.
Roosevelt was asking the legislative branch to take a greater role in constitutional interpretation: to say, in effect, if we elected representatives feel that the Court is making important mistakes in constitutional interpretation, we have a legislative remedy. The legislature can appoint more Justices and tip the balance.
Since we are now so accustomed to assuming that the Supreme Court gets the last word, this seems like a horrible idea. But it really isn't. Members of Congress also take an oath to preserve, protect and defend the Constitution. If they conclude that the Court is completely off base in its decisions, must they sit powerless with no remedy until some Justices die?
I think Posner has it right. We can not conceive of a rogue Court because we have not had one. Even the Court's most controversial (and in my opinion destructive and wrongheaded) opinion, Roe v. Wade, enjoys a substantial popular and legislative support. But in a real constitutional crisis, why not let the people's elected representatives have final say on what the Constitution means? They are ultimately more accountable to the people than judges.
Expansion of the Court should be undertaken only in very difficult circumstances--a highly unusual remedy for highly unusual circumstances. Roosevelt thought 1937 was such a time. The popular reaction to his proposal showed that the people did not agree. But the time could come when the legislature, and the people, justly take another view and expand the court. (This happens all the time, with lesser consequence, in the lesser federal courts.)
I think Posner is undoubtedly right that had Roosevelt been successful in 1937, we would see a more restrained judiciary now. Would our society be less fractured if that were the case? I think it might. While I favor abortion rights for women, the Roe decision has poisoned politics in the country. I believe that we would have come to a similar but less absolutist conclusion through legislative action, and that abortion would be easier to accept for its opponents if they had lost a series of fair legislative fights.
It's all speculation. We have what we have. But the imperial Court, as controversial as it is to many now, has not done near the mischief that it is now institutionally capable of.
We have two Davids at work here. The later post is by David from South Carolina.
There already is away to correct a rogue court making extra legal decisions and that is impeachment. Court packing is a disastrous alternative. Our court would soon be like the calendar before Juius Caeser reformed it. Whenever politicians wanted to restrict some political action they would use their power to make adjustments to the calendar to move holidays around. Soon there was no sense to the calendar at all. Likewise, had Roosevelt's court packing plan worked in the 1930's every president would find a reason to pack the court. E eventually we would have 35 justices and then it would eventually rival the House of Representatives in size.
I think term limits should be considered for the Supreme Court, or at least a reasonable mandatory retirement age.
I'd suggest 12 years as a term limit or 75 as a mandatory retirement age.
Sheepman
You beat me to it.
But, without addressing Prof A's "fundamental question" term limitations, say 20 years, would really solve the problem of getting new blood, new ideas in, without an age limitation since most justices are in their mid-50s when appointed.
Fat chance of getting term limits on SCOTUS justices or Congressmen.
Who knows if Clarence Thomas lives to be 93 & is still sitting in his 50th year (don't make me do the math) whether he will be still a good justice.
Right now we have two justices who are old & grey & full of sleep & nodding by the fire &, we have Scalia, tho he's my kind of guy, who's >75 years of age.
Prof. Althouse, I agree with you about the overriding importance of an independent judiciary, contra Judge Posner.
I do respectfully dissent from your characterization that "[d]eference to the legislatures in FDR's day served a liberal goal, and the activists were the conservatives." This statement suggests a dichotomy between deference to the legislature on the one hand and activism on the other. But sometimes it's activist to defer to the legislature, and sometimes it's not activist to strike down a law.
For example, it would not be activist to strike down a law that allowed the FBI to search the homes of U.S. citizens without a warrant.
Conversely, it is activist to uphold a congressional act that exceeds the scope of Congress's enumerated powers simply because the reviewing court thinks that the act makes good policy.
A classic example of this, arguably, is Wickard v. Filburn, the 1942 case that held that the regulation of a farmer's wheat production for his own consumption (so, intra-state, non-commercial activity) fell within the purview of Congress's interstate commerce power.
The merits of Wickard's holding, and its reasoning that cumulatively such activity would have an effect on interstate commerce even if it did not qualify as interstate commerce itself, are debatable; I'm not saying that the decision was per se incorrect. But I think that Wickard, which upheld a congressional act, was more of an "activist" decision than a decision that declined to so extend the Commerce Clause would have been.
I should add that Lochner-ish conservative activism was both activist and not deferential to legislatures. Substantive due process decisions are activist no matter which side of the political spectrum likes the results. But FDR's legislation generally raised Commerce Clause questions, and often required expansive readings of the Commerce Clause in order to uphold laws.
One unintended consequence of the primacy of court review is the loss of responsibiity of the elected officials. Who knows? Maybe if the court had lost some of its prestige, congress would have had a harder time ducking rewponsibility by deferring to the court. The drift of congress away from controlling spending by the executive toward being the source of endless increase in spending has been facilitated by their ability to plead helplessness.
I can't blame you, Ann, for desiring a strong judiciary, but I also can't blame Posner for wanting some real pressure for judicial restraint. I challenge you: how else can you really constrain judges in any meaningful way?
Marshall's answer - essentially that judges have only their pens/minds/logic - seems lacking in an age where the other branches just won't pull an Andrew Jackson ("They have made their decision, now let them enforce it.)"
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