September 25, 2012

Justice Stevens rejects the idea that legal expertise is the reason why judges have the last word on the meaning of the Constitution.

The retired Justice is reviewing Sanford Levinson's new book "Framed: America’s Fifty-One Constitutions and the Crisis of Governance."  Levinson has offered 3 different reasons why judges have this role in our system of separated powers:
[F]irst, that they are experts in the law in the same way that rocket scientists have a field of expertise; second, that they are gifted with exceptional wisdom; or third, that the terms of their office liberate them from “political” constraints. He correctly rejects the first answer because the number of dissenting opinions belies the suggestion that there is only one permissible answer to the kind of question that courts consider. He correctly rejects the second answer because he agrees with Justice Holmes that “the life of the law is not logic, but experience.” While he concludes that the third answer depends on one’s views about the empirical consequences of election of judges, in my judgment, he accurately identifies the controlling criterion in this sentence: “Life tenure and the liberation from political accountability would remove certain incentives that lead ordinary leaders to betray the public good.”

21 comments:

Paul Zrimsek said...

Life tenure and the liberation from political accountability would remove certain incentives that lead ordinary leaders to betray the public good.

Worked like a charm for Mussolini.

Paul Zrimsek said...

[F]irst, that they are experts in the law in the same way that rocket scientists have a field of expertise... He correctly rejects the first answer because the number of dissenting opinions belies the suggestion that there is only one permissible answer to the kind of question that courts consider.

Hard to tell whether Levinson or Stevens is responsible for this bit of gibberish, but of course the case for leaving certain jobs to experts depends only on their being more likely than non-experts to pick good answers over bad ones. Nothing is implied about there being only one permissible answer.

traditionalguy said...

Our will to remain a Republic ruled by an elected representative assembly within the set boundaries of a Covenant document we call our Constitution is the key reason that we let the Supreme Court have the final say.

Whenever there is a civil war, then the Supreme Court has no say at all until the winner is empowered by a victory and bows down to them again.

That is why Obama is setting us up for a civil war and arming the Feds for his Actium.

So in the real world our Constitution is what William T Sherman's army or its latest reincarnation says it is.

Sherman was not a lawyer.

kcom said...

"Sherman was not a lawyer."

Are you sure? Didn't he leave devastation in his wake?

Nonapod said...

the number of dissenting opinions belies the suggestion that there is only one permissible answer to the kind of question that courts consider

Yeah...this statement is not referring to dissenting opinions about the value of a given judge's expertise in that analogy, but that there could be more than one answer. Is the law subjective?

BarrySanders20 said...

Sherman answered to Lincoln, respecting the civil authority over the military per the Constitution. It wasn't Sherman calling the shots of what was or was not constitutional, or what had to be done, but Lincoln. In time of war, particularly civil war, federal power in the United States shifts massively to the President and executive branch. Always has, always will because it must.

BarrySanders20 said...

I forgot to add that Lincoln was a lawyer.

David said...

“Life tenure and the liberation from political accountability would remove certain incentives that lead ordinary leaders to betray the public good.”

True, but the life tenured judges can betray the public good as well, for a variety of reasons. They are not accountable politically for these betrayals, except through the nearly impossible remedy of impeachment.

Federal elected officials we can throw out after two, four or six years, depending on their office.

If life tenure is such a great idea, why not give it to Presidents or Congresscritters?

Answer: It's not a good idea, so the premise is wrong.

Richard Dolan said...

The 'life tenure leads to independence' rationale is unconvincing. Accepting that it removes 'certain incentives,' it doesn't remove the most important one: the exercise of power to achieve one's goals. Judges are not priests or saints, and have all the faults that every person seeking a position of power in society comes with. For this rationale to be convincing, you would need an argument showing that independence from the electoral process after appointment to the bench fosters neutrality in judicial rulings. It's hard even to define what 'neutrality' means here (Stevens' reference to the frequency of dissents makes the point nicely). Our habit of talking about the justices of the SCOTUS has being Dem or Rep, liberal or conservative, makes the point just as well. Without a coherent idea of what 'neutrality' might be, and a set of commonly accepted neutral principles that courts can apply to achieve it, good luck with that 'independence' rationale.

I think the better justification is that, in order to have a system of laws and limited powers, there has to be a source of law imposing those limits as well as a way to enforce them. Enforcement requires an enforcer. Otherwise, the constitution is just a lot of precatory stuff, to be followed (or not) as the legislature and executive deem best. Limits become just whatever the legislature or executive are willing to accept, or what in a changing political environment, they can get away with.

Note that a perfectly civilized form of government can be fashioned without a constitution providing an enforcable source of law limiting the legislature or executive. That was the system followed in England for many years until recently, and it worked OK.

Quite apart from this theoretical discussion about justifying the idea of judicial review, the reality is that we have it today because, for all intents and purposes, we've always had it. CJ Marshall came up with a clever way of taking the idea of judicial review (the idea had floated around during the debates on the Constitution but was never very specific) and making it a reality of government -- he imposed it on Congress and the President 200 years ago, but was sensible not to invoke it in ways that would really get the other branches upset. That happened under Taney, but by then the idea was an accepted part of American jurisprudcence. It's quite remarkable that the idea of judicial review of federal legislation survived Taney (federal judicial review of state legislation under the Supremacy Clause was never all that controversial), but it obviously did. And here we are today.

Paddy O said...

Similar to the ideal for journalists, who being supposedly objective observers can report objectively.

The trouble with this ideal is that it is so utterly Modern in its conception. Well, Enlightenment. And I guess that's not the trouble itself, the trouble is the assumption that objectivity is possible for educated people. And with this is the very idealistic assumption that the public good is only undermined by active betrayal.

The gentleman scholar is assumed to always not only have the public good in mind but also be able to determine it and move society towards it. The 20th century was the breakdown of such idealistic assumptions, as it was quite clear how much someone entirely earnest about the public good can be so utterly wrong about actually what good the public actually needs.

The framers of the Constitution while good men of the Enlightenment were significantly less idealistic about trusting human assumptions about the public good, so created a constitution that purposely limited the powers of such enlightened men. The politics are framed to provide a constant limitation to 2 branches of the government, while the Constitution itself framed the limits of what is or is not in the domain of the judiciary.

Once amendments became out of fashion, and judges realized they could make up their own laws and stretch the limited powers to an unlimited scope by mere notionally enlightened fiat, then the very ideal of a apolitical, objective judiciary itself is likewise utterly washed away.

The judiciary essentially takes the place of what the old Senate used to be, appointed politicians serving the will of their respective parties in a smaller house of legislation.

Larry J said...

Accepting that it removes 'certain incentives,' it doesn't remove the most important one: the exercise of power to achieve one's goals. Judges are not priests or saints, and have all the faults that every person seeking a position of power in society comes with.

The Constitution means whatever you can get 5 SC justices to agree to. That agreement doesn't have to be at all related to what the Constitution actually says.

On my more cynical days, I believe a lot of judges (and justices) are little more than failed lawyers with the political connections to get a lifetime appointment to the bench.

Crunchy Frog said...

Judges get the last word because somebody has to. Preferably someone er, "judged" to be both knowledgeable and impartial.

Otherwise it comes down to whoever can shed the most blood.

BarrySanders20 said...

"On my more cynical days, I believe a lot of judges (and justices) are little more than failed lawyers with the political connections to get a lifetime appointment to the bench."

Very unusual at the federal level.

Too true at the state level.

Also, on a different point, the impact of life tenure cuts both ways. Federal judges don't have to worry about reelection, while Wisconsin state court judges do. Which has more influence on how a judge might decide?

Dane-County elected judges, beholden to nobody other than other Dane County voters, declaring void state-wide legislation that antagonizes the majority in Dane County is a recent example. Juan Colas is no judicial heavyweight. He has no greater insight than you or me, but he does need to get reelected. Though Colas will never be on the federal bench, maybe he rules the same way in either case since he is so far down the left path, but knowing he needs to be reelected, there was no suspense over how he would rule. Just like Judge Sumi before him who he sees in the coffee lounge and at polite leftist gatherings in Madison.

Paul Zrimsek said...

Didn't he leave devastation in his wake?

This deserves to be worked up into a full-fledged lawyer joke. ("One was a ruthless marauder who stopped at nothing to achieve victory, spreading looting and destruction wherever he went. The other commanded the Army of the Tennessee.")

Peter said...

'Richard Dolan' said, " think the better justification is that, in order to have a system of laws and limited powers, there has to be a source of law imposing those limits as well as a way to enforce them."

It's difficult indeed to rebut the "but someone has to do it!" argument. Although that kicks the issue over to, "How do we get honest, self-limiting jurists on the bench?"

Here, the persistent drift of judges to maximize their authrity is all too evident.

Saint Croix said...

I believe we should amend our Constitution so that we have a retention election over Supreme Court Justices.

I think every two years, one of the Supreme Court Justices should face the American people.

I believe our Constitution is popular, and that our people will support Justices who follow our Constitution.

I also believe that Supreme Court Justices who do horrible crimes will be fired. And that's the way it should be.

MrCharlie2 said...

Sherman was an engineer, and hallowed be his name.

Left Bank of the Charles said...

Justices don't have the last word.

KenK said...

Before we voted in term limits here in MI for governor and the legislature we had a permanent political class of committee chairs (both parties) that gave us predictable amounts of gridlock on import business. If their pet project didn't pass or got vetoed, well there was always next time. Now, govs have two terms to get it done then they're out (So long Granholm!) And the legislators can't just wait 'em out any more either.
Same story with chairs, majority leaders, speakers, and etc. Terms are served and then must get out. In the last two elections incumbent supreme court justices were defeated. Some say this limits their value. Maybe so but it also limits the damage they can do too.
US Article III judges should be re-confirmed by the Senate every 7 years (and guaranteed a vote too, no filibusters) and must have to retire at 70. Permanent political classes do more harm than good IMHO.

Dante said...

[F]irst, . . .; second, that they are gifted with exceptional wisdom; . . . . He correctly rejects the second answer because he agrees with Justice Holmes that “the life of the law is not logic, but experience.”

As long as I've considered it, "wisdom" has been a confusing term to me. I know it when I see it in action, but it's hard to get a good sense of the word. My view is that "wisdom" is synthesis of experience, the integration of many experiences of systems into the neural net of the mind. Intelligence is logic, the ability to draw conclusions. And Knowledge is the encyclopedic ability to recall information (soon to be replaced with the google chip in your brain).

These are important words.

The Godfather said...

Judicial review is based on Chief Justice Marshall's common sense assertion that it is the appropriate function of the courts to declare what the law is. That's not based on the special expertise of judges, nor their wisdom, and certainly not their terms of office. It's based on the nature of the function to be performed.

Where Supreme Courts have gone terribly wrong has been to treat as legal questions requiring a legal answer disputes that don't really involve "what the law is". When Justice Taney decided that blacks had no rights under the Constitution, he was not declaring what the law is; he was enforcing his own ideological views. The same is so of the Supreme Court that declared that states have no power to prohibit abortion. In both cases, you will look in vain in the Constitution for law that says what the Court declared (emanations don't count).

Most of the time, the Supreme Court performs the useful function of resolving legal disputes in an intelligent and reasonable way -- not in the only possible way, because cases that can have only one answer rarely get that far. But sometimes the Court goes off on a Dred Scott/Roe binge. The Dred Scott decision was reversed by the Civil War and the consequent amendments to the Constitution. "We" generally are willing to suffer the occasional usurpation by the Court, rather than face that kind of upheaval.