June 23, 2014

"Americans’ willingness to accept the Supreme Court’s mystical role is partly a symptom of disappointment in our own democratic capacities."

"Congress is the most directly representative body of the federal government, and almost no one sees it as having principled authority or moral charisma. Hoping that the Supreme Court will make us better than we can otherwise be, better than our own representative institutions, is neither self-respecting nor very likely to succeed."

Writes lawprof Jedediah Purdy in a very layperson-accessible presentation of the progressive case against judicial review. I think he's quite wrong, by the way.

Expect to see much more of this sort of thing in the press as Erwin Chemerinsky's book "The Case Against the Supreme Court," hits the market this September. From the book's description at Amazon:

Most Americans share the perception that the Supreme Court is objective, but Erwin Chemerinsky, one of the country’s leading constitutional lawyers, shows that this is nonsense and always has been. The Court is made up of fallible individuals who base decisions on their own biases. Today, the Roberts Court is promoting a conservative agenda under the guise of following a neutral methodology, but notorious decisions, such as Bush vs. Gore and United Citizens [sic!], are hardly recent exceptions. This devastating book details, case by case, how the Court has largely failed throughout American history at its most important tasks and at the most important times.

Only someone of Chemerinsky’s stature and breadth of knowledge could take on this controversial topic. Powerfully arguing for term limits for justices and a reassessment of the institution as a whole, The Case Against the Supreme Court is a timely and important book that will be widely read and cited for decades to come.
Only someone of Chemerinsky’s stature and breadth of knowledge could take on this controversial topic? This topic has been spewed across the internet for years and the spewers include many writers who don't even bother to go to law school first. And I don't mean just left-leaning commentators. People of the right do the same thing, just with a different set of terrible cases that prove the Court's fallibility.

The Court has largely failed throughout American history but which way has it failed? Depends on the politics of the pundit assailing the Court.

You know, it's not as if the Justices claim infallibility, and without the judicial branch, everything would be left to shifting partisan politics and nothing would be reserved to the realm of the individual. Why would either conservatives or liberals want that? Whining that the Justices are actually human beings with human minds living in the real world strikes me as infantile, and I really don't think their work would be tolerable at all if they could be the kind of entirely objective abstract reasoners from the text that the Amazon description tells us "most Americans" think they perceive.

I'll just end with a footnote I wrote in a law review article a long time ago:
I have occasionally felt the urge to write a film script about a superhero called Framerman. Framerman appears upon the legal scene whenever judges have difficulty interpreting the Constitution. His superpower is the possession in a single mind of the collective consciousness of all the framers and ratifiers. He stands ready to answer any question, however unforeseen at the time of ratification, precisely as the entire body of relevant decisionmakers at the time would have resolved it. No more guesswork! No more result-oriented historical mumbo-jumbo! Dramatic conflict heightens as Framerman gives answers that surprise and then outrage the judges. The judges could rise up in anger and murder our poor superhero in the end, but this seems out of judicial character. Instead, what happens is this: the judges begin to write opinions rejecting the controlling effect of original intent. Hearing this, Framerman -- bearing a slight resemblance to Tinkerbell, who would die if people stopped believing in fairies -- clutches at his heart and succumbs.
Citation: "When to Believe a Legal Fiction: Federal Interests and the Eleventh Amendment," 40 Hastings L.J. 1123 n.29 (1989). No, it's not up on line, and what difference does that make? You're not going to read a 1989 article about the 11th Amendment, and neither is anyone else, and, frankly, it would be stupid to do so. This article predates Seminole. I'm just rescuing the footnote, for blog purposes, from the obsolete, quarter-century-old law review article.

The point of the footnote is: You profess belief in neutral, objective judges, but the truth is, if you could really get them, you'd hate them, and you wouldn't trust them with the power we've long given to the real, human judges who are the only kind of judges we're ever going to have anyway, in the real world we live in.

But I'm not saying I think that Purdy and Chemerinsky are babies crying over the lack of ideal judges and naive about the ways of the world. They are law professors, a category of human beings who are at least as political as everybody else.

And by the way, why does The Daily Beast illustrate Purdy's essay with this depiction of the Supreme Court dominated by Jesus?



3 of the Justices are Jewish, and the essay is not about the religious influence on the Court. It must be a literal interpretation of the headline, "God Save the United States From This Anti-Democratic Court." Why gratuitously mock religion and unwittingly disrespect the Jewish Justices?

57 comments:

The Drill SGT said...

Should a self-respecting democracy have a Supreme Court like ours, with the power to overturn democratic legislation? More and more progressive observers are not so sure. But one thing is clear: we need a more mature relationship with the Court and, through it, a more open and democratic relation to the Constitution.

Short Version: The SCOTUS is the last (only) bulwark against the "Tyranny of the Majority"

Biff said...

Thanks for sharing the "Framerman" footnote. Very entertaining, and almost certainly accurate.

Mark O said...

I remember Erwin's blather from the OJ case.

Ignorance is Bliss said...

You profess belief in neutral, objective judges, but the truth is, if you could really get them, you'd hate them, and you wouldn't trust them with the power we've long given to the real, human judges who are the only kind of judges we're ever going to have anyway, in the real world we live in.

Could you flesh out the reasoning behind this belief? Do you think we wouldn't like them because they would have to overturn a bunch of incorrect decisions from the past that we've come to rely on? Or would we still not like them even if judges had always been ruling based on original intent?

CWJ said...

"United Citizens" ?

Ann Althouse said...

"Do you think we wouldn't like them because they would have to overturn a bunch of incorrect decisions from the past that we've come to rely on? Or would we still not like them even if judges had always been ruling based on original intent?"

Both, but mostly the latter. I think that the process of judges mostly thinking they are following the texts and standard legal interpretation gets to very different results than Framerman would provide, and that these results are adjusted to our larger values and needs, and that if the adjustment were not a continual factor, we would not accept the power that we do accept in judges.

retired said...

I used to hear Chermininsky on the Hugh Hewitt show. Listening to him talk about the law is like hearing an atheist episcopal priest talk about the Bible. Neither one believes in the source document and they both twist the truth support to their ideological agendas. How can you disparage the courts as a judicial activist if you are relying on them to enact the policies you can't pass in the legislative branch?

Ignorance is Bliss said...

...we would not accept the power that we do accept in judges.

I think most people who argue for original intent would say that is a good thing. We shouldn't give them the power to do more than call balls and strikes.

rhhardin said...

Everybody concedes that the Justices are human, but you don't have to appoint women. That's looking for trouble.

traditionalguy said...

"Nine men against America" was the oldest hyper conservative motto that I remember hearing.

The Calvinist governing traditions in the culture that ratified the USA's 1787 Constitution found great comfort in keeping a group of trusted Elders watching over the political actors who might want to change the governing system. The Elders were the Senators and the Supreme Court. Throw in a Bill of Rights and the Constitution got ratified.

We used to call that a checks and balances system intentionally t designed to stop any new forming monarchy in its tracks.

But today the youth are told at school and on TV that they are to elect a President "to run the country." A Presidential Monarchy in other words.

And monarchy is still the natural enemy of checks and balances enforced by Elders for the people who refuse hated monarchy.

The War Powers of a Commander in chief were kept in the Constitution as a necessary Monarch's Power for war emergency.

So we have found ourselves for 60 years with a King in quasi Command of a perpetual war on the USSR, Terrorism, now weather and humans that live or work in natural animal habitat, and finally on white men whose odd existence offends the King and his female Appointees.

deepelemblues said...

These people are really aggravated that there are institutions in American society they haven't been able to subvert and completely control yet.

BDNYC said...

Judicial review of legislation would be less needed if elected officials took more seriously their independent obligation to uphold the Constitution, and accordingly err on the side of inaction.

Judicial power to invalidate duly-enacted legislation is awesome power indeed, and it is best used sparingly and responsibly. Which means judges should make their views crystal clear, so that legislators can know where the lines are.

Credibility matters. When judges invalidate laws based on unenumerated or nebulous constitutional grounds, their credibility is damaged because it seems like they're just bullshitting to enact their own policy preferences.

mtrobertsattorney said...

What kind of evidence would a judge rely on to determine what "our larger values and needs" are?

Polls? The received opinions of the judge's peer group or social group he or she hangs out with?

The best evidence would be a resolution passed Congress, on a case by case basis, that identifies these values and needs. Members of Congress, after all, are closest to the views of the folks.

Alex said...

Progressives are just fine with the SCOTUS when its Brown vs Board of Education. But when it's Citizens United, that's evil. Progressives are just Nazis in another guise. They utilize existing Constitutional methods to gain power for the purpose of abolishing it.

HoodlumDoodlum said...

"God Save the United States From This Anti-Democratic Court."

I didn't bother to go to law school, but isn't being (in a sense) anti-democratic a fundamental purpose of the Supreme Court?

Anonymous said...

Has anyone done an economic analysis of the cost / benefit of precedence in our judicial system - where precedence is largely what puts the judiciary into the "law making" role - vice the toss of the coin that would happen for any issue that fell at the margin of what the legislature wrote? In the constitutions and legal code we blessed the West Germans and Japanese with after WW2 there's no precedence - no accretion of language beyond what the legislature wrote. So when the parliament language isn't clear it has to be fixed by the parliament, not the courts. Plus it appears that the legal burden on their economies is a small fraction of the U.S. Perhaps only 1% of their GDP vice 5-10% in the U.S.

Granted, this says nothing about the (ab)use of vague regulatory authority established by Congress being later fleshed out by an Agency and a supportive lower court hand-in-hand with a special interest - and always to the detriment of the taxpayer who has no say in what amounts to levying a new tax.

Do a web search for Econtalk Bootlegger for a podcast interview with Yandle on how regulation as implemented most often has perverse, often opposite the intended results.

Alex said...

I think most Americans are more intelligent then law professors give them credit for. They realize that concentrating too much power in any one branch of government is not a good thing. I know that Thomas Friedman admires the autocratic Chinese, but thank god we do not listen to him.

Michelle Dulak Thomson said...

Ah. I remember Jedediah Purdy; he's the largely-homeschooled kid who wrote For Common Things. A Duke lawprof now, eh?

Hagar said...

The Supreme Court has not been perfect, but it has been pretty good, and that is why we have some confidence in them.
They have at least generally tried to do the right thing as they saw it at the time.

Levi Starks said...

I spend a fair amount of time listening to NPR, and the last time the court handed down a 2nd amendment ruling which had as it's basis "the right to keep and bear arms" means the right to keep and bear arms, NPR commentators framed that decision as judicial activism.

Paco Wové said...

Only someone of Purdy's stature could pull a boner like "United Citizens".

James Knauer said...

Moore's Law has shown us how lifetime political appointments to any political office substantially injures the nation. Virtually all elected pols were raised in the quaint age of movable type, miring the country in the same irrelevant debates from which it cannot seem to escape.

When millennials arrive at the levers of power, one predicts much more automation, and a lot less money in politics and government.

Abdul Abulbul Amir said...


Without a Supreme Court, the constraints the constitution places on the government would be meaningless. Progressives seem to want nothing more than more power to the state.

MartyH said...

"Today, the Roberts Court is promoting a conservative agenda under the guise of following a neutral methodology, but notorious decisions, such as Bush vs. Gore and United Citizens, are hardly recent exceptions."

That sentence reads like the Roberts Court decided Bush vs. Gore. And what the heck is "United Citizens?" The scary thing is that whoever wrote that probably thinks that they are well informed on politics...

phx said...
This comment has been removed by the author.
Brando said...

It's very simple--when the Court rules the way you like, it's a bunch of wise Solons who use their legal brilliance and reverence for our rule of law to prevent the hack politicians from trampling our rights. When the Court rules the way you don't like, they're a bunch of unelected tyrants trying to impose their extremist beliefs over the will of our democratic majority.

When have people ever seen it otherwise? Can you show me one time when liberals said "well, I'm not happy with the opinion that Scalia and Thomas wrote, but they clearly applied constitutional principles and they know more about the law than I do. I guess a part of the system is that it's not always going to rule your way"?

Or when conservatives found that although the Roberts court ruled in a way they liked, they thought it wasn't their place to do so because the decision is properly left up to the other branches of government?

Anthony said...

Hence the coequal separation of powers. I'm more and more realizing what a great thing "balance of power" is in virtually every realm.

Ann Althouse said...

"Ah. I remember Jedediah Purdy; he's the largely-homeschooled kid who wrote For Common Things. A Duke lawprof now, eh?"

Yes, and here's the very memorable NYT article written about him at the time of the publication of that book, when he was 24 and scarily earnest.

Ann Althouse said...

"Only someone of Purdy's stature could pull a boner like "United Citizens.""

That mistake is in the Amazon description of Chemerinsky's book, but good catch.

dwick said...

'one of the country’s leading constitutional lawyers'

Is there really some magical list of 'leading constitutional lawyers'?... (How many constitutional lawyers are there, anyway?) Or is it just a marketing blurb to help puff up resumes and/or sell books?

Was Barack Obama a 'leading' constitutional lawyer in his lawyering days? I would guess he isn't considered one now... Or does the old saw 'those who can't do, teach' apply here?

Is there a poll/vote among all constitutional lawyers? Do constitutional lawyers mount campaigns to make the list? Does some Casey Kasem-type led organization decide and propagate an 'American Top 40 Constitutional Lawyers' program? Other than being a constitutional lawyer in some fashion, are there certain minimum requirements to be considered a 'leading' constitutional lawyer? Like a syndicated radio show (e.g., Mark Levin) Some number of books authored?

Just curious... I'm never really sure how serious to consider anyone who calls themselves a 'leading' authority on much anything these days.

tim maguire said...

I had to laugh, as I was reading Framerman and thinking about the difference between Originalism and Living Document, and how, as a practical matter, Originalism is a form of Living Document too since the Framers can't possibly have had an opinion on so many issues that come up today because they didn't face them or didn't think about them. I got an image of pre-Enlightenment Europe where people, out of deference to the bible, refused modernism. "The Earth can't revolve around the sun," they said, "the bible says Jesus stopped the sun in the sky, so the sun must revolve around the Earth," and "we can't plant our crops in careful rows because in Jesus' parables, the farmer sowed his wheat by flinging it out by hand and it landed just anywhere. God must want us to fling our seeds out by hand so they land just anywhere."

And then I scrolled down a little further in your post and saw it right there--Jesus and the Supreme Court. Together, hand in hand.

dwick said...

'one of the country’s leading constitutional lawyers'

Is there really a magical list of 'leading constitutional lawyers'?... (How many constitutional lawyers are there, anyway?) Or is it just a marketing blurb to help puff up resumes and/or sell books?

Was Barack Obama a 'leading' constitutional lawyer in his lawyering days? I would guess he isn't considered one now... Or does the old saw 'those who can't do, teach' apply here?

Is there a poll/vote among all constitutional lawyers? Do constitutional lawyers mount campaigns to make the list? Does some Casey Kasem-type led organization decide and propagate an 'American Top 40 Constitutional Lawyers' program? Other than being a constitutional lawyer in some fashion, are there certain minimum requirements to be considered a 'leading' constitutional lawyer? Like a syndicated radio show (e.g., Mark Levin) Some number of books authored?

Just curious... I'm never really sure how serious to consider anyone who calls themselves a 'leading' authority on much anything these days.

David said...

FDR (a terrestrial equivalent to God in some eyes) tried to save us from the Court in the 1930's, when he came up with his court packing scheme.

Congress was not willing to go along with the idea, thus losing their best chance to dilute the power of the court since the Senate ratified the appointment of John Marshall.

The reason that FDR's scheme failed is debatable, and as in all legislative action (or inaction) it is also multiple.

However, the legislative branch had its chance to fire a very loud shot across the bow of the Court, and declined to do so. So once again we are getting what we deserve.

Austin said...

Chemeirinsky is correct, but it is ludicrous to suggest his observations are novel, because the idea that the SC justices are nine infallible Delphic oracles is also ludicrous. The justices are, quite obviously, people with their own personal prejudices and political agendas. Which is why on any given issue, it is fairly easy to determine how they will decide a case. Oh, and we need cameras in the Court to help remove the counter-productive mysticism which surrounds the justices.

Anonymous said...

These Progressives are absolutely right! We need to get rid of Roe v. Wade, we need to bring back the DoMA, Lawrence v. Texas and Romer (v. Evans?) both need to be tossed out, we need to junk the "Political Process" doctrine. Prop 8 should be fully enforced, the Exclusionary Rule should be dumped, and the death penalty should be brought back for rapists, minors, and the "mentally deficient."

Stand with me, brother Progressives, and we fight against the evil of the US Supreme Court!

Philip Miles said...

Since I didn't see it mentioned anywhere else - he already wrote The Conservative Assault on the Constitution. I expect a lot of overlap with this new one.

The Godfather said...

My political beliefs were largely formed in the late '50's to the early '70's. During that period the Supreme Court was more "liberal" on most issues than the country's political leadership. Hence, conservatives of my generation grew up with the notion that the Court should defer to the political branches except where there was a clear violation of the Constitution. All good liberals in that era abhored judicial restraint and advocated judicial activism. Now, apparently, the "progressives" think that the Court is more "conservative" than the political branches, and so they have now reversed their position and are touting judicial restraint.

Chief Justice Roberts' opnion on Obamacare is the kind of judicial restraint that conservatives of my generation can understand and symparhize with, even if we don't like or agree with it. I wonder how Chemerinsky deals with that example of intellectual honesty trumping ideological preference?

As I look at American history I see very little evidence that judicial activism has been of much benefit to the country. Brown v. Board was probably the best example of activism in a good cause, but I don't know how you balance that against The Slaughterhouse Cases and Plessy v. Ferguson. Clearly the most destructive Supreme Court decision was Dred Scott, which helped to foment the Civil War.

Austin said...

Taney merely stated an ugly truth in Dredd Scott and did not contemplate the constitutional right of secession. And it was the question of secession that caused the war, not the question of, in the language of 19th century America, "negro citizenship".

John Constantius said...

Eh. After 225 years (more or less) of the Constitutional Republic, the executive and legislative branches of the federal government don't agree on much -- other than the fact that the federal government should have a lot of power. The national political parties of the Republicans and Democrats don't agree on much -- other than the notion that Republicans or Democrats who get elected to national office should have a lot of power.

Over the 225 years of the Republic, national office has transformed from something done after a successful career in the private sector or military into a career in itself, something you get into at the "entry level" in your early twenties (frequently after a law degree), gradually getting bigger jobs and more exposure depending on how your bosses in the party grade your performance evaluations, and eventually for the high-flyers getting a shot at the big time jobs in your 40s, 50s and 60s. Needless to say, respect for the common man and restraint in the exercise of power play no role in the thought process of people who came up through the ranks like this. They went into politics in their early 20s precisely so they could call the shots, so now that they've paid their dues and gotten the top job(s), the peasants better be ready to kiss ass and say "Yes sir" to their political overlords.

If a group of nine men or women who have jobs for life and are not subject to re-election (and therefore not beholden to the party) can protect us from this, then I welcome them, however imperfectly they do their jobs. The whole point of the Supreme Court is that they are beholden to no one so are free to make decisions based on their wisdom and conscience rather than political concerns. It doesn't work well nowadays but my God it's pretty much the only hope the common man has left.

tim in vermont said...

The SCOTUS is fine when it serves Democrat will to power, and a horrendous anachronism when it doesn't.

American Liberal Elite said...

I don't think I could have passed Fed Courts without Chemerinsky's book.

bgates said...

The point of the footnote is:

Your contention is that originalists haven't thought through what our preferred method of constitutional interpretation would really entail, and your evidence is a footnote to a little read law review article about a piece of fiction you considered writing decades ago but didn't.

traditionalguy said...

IMO the issue of Supreme Court co-equal power is not finding the easy way versus the hard way to make laws.

The real issue is whether we live under a Hierarchical kingdom or a democratic elected Republic watched over by committee of trusted Elders.

It's always been about our form of government. Does the Government have the people, or do the people have the Government.

Alex said...

The left's hypocrisy is breathtaking in it's grandeur. They think we have no memory, that we're a bunch of morons.

Alex said...

tradguy - because the Germans never had a real republican government, they were so easy to hand over the reigns of power to Hitler in 1933. Fortunately America comes from different stock.

Michael K said...

I've listened to Chemerinsky on Hugh Hewitt;s show for years, before he started UCI law school. As iff California needed more lawyers. He is a hard lefty who cannot see any other side of any case. He is a parody of the left.

Michael K said...

If anyone is in doubt about the lefty culture at UCI law school, run by Chemerinsky, look at this"

This has led Rick Hasen, the “Chancellor’s Professor of Law and Political Science” at the recently accredited University of California at Irvine Law School, to publish a series of brazenly false headlines such as “Conservative ‘Election Observers’ in Mississippi May Be Meant to Intimidate Democratic Voters in Cochran-McDaniel Race.”

Zeb Quinn said...

Shorter: If the left controlled the Court with six hard left votes these libtards would think the Court is just peachy-keen.

Anonymous said...

Your description of Framerman makes me think of Isaac Asimov's Foundation stories, in which a brilliant mathematician named Hari Seldon predicts the coming three thousand years of galactic history (!) and records messages to be played back in a series of "Seldon Crises," each of which he has foreseen, in which he analyzes the crisis and points out the one and only solution.

Unknown said...

The Constitution is the Supreme Law of the Land.
It gives the federal government a few specific, narrowly-defined powers, and explicitly reserves everything else to the states or the people of the states.

We've gotten to where we are by the ratchet of precedent.
This is not a power given to Article III courts in the Constitution. I'm unaware of any Law passed by Congress and signed by the President that enshrines the doctrine of precedent into law. It's an invention of, and an usurpation by, the judicial branch.

Terrence OBrien said...

I didn't bother to go to law school, but that certainly doesn't disqualify me from commenting on the Supreme Court.

David R. Graham said...

"So we have found ourselves for 60 years with a King in quasi Command of a perpetual war on the USSR, Terrorism, now weather and humans that live or work in natural animal habitat, and finally on white men whose odd existence offends the King and his female Appointees."

That is elegant.

David R. Graham said...

" ... if the adjustment were not a continual factor, we would not accept the power that we do accept in judges."

Concur. Acknowledges underlying thread of validity in "living Constitution" doctrine without necessarily endorsing condemnation of "originalism."

Nothing is ever the same again. Nothing can be returned to. Life is fresh by the instant. Government's purpose is to regulate currencies for the common prayer.

bobby said...

"I didn't bother to go to law school, but isn't being (in a sense) anti-democratic a fundamental purpose of the Supreme Court? "

I did.

And, with this question, you've shown that you know more about the Constitution than a sizable portion of my classmates.

So, thank you .

Micha Elyi said...

Were Framerman to appear, people who disagree with the Constitution as understood by its framers and ratifiers would have to do the honest thing and amend it. The framers did provide for amendments. It's plainly in the text. Framerman agrees with me about that, btw.

But honesty is a hard disciplinarian so people--including judges--often flinch from it.

Rusty said...

Alex said...
Progressives are just fine with the SCOTUS when its Brown vs Board of Education. But when it's Citizens United, that's evil. Progressives are just Nazis in another guise. They utilize existing Constitutional methods to gain power for the purpose of abolishing it.

Fascism is just progressivism taken to its logical conclusion.

Rich Rostrom said...

Purdy's brazen hypocrisy is breathtaking.

For over 60 years, liberals have invested the Supreme Court (and other courts) with extra moral authority, so they could bypass legislatures and short-circuit democracy in pursuit of their policy ends. The "disappointment in our own democratic capacities" is theirs, not Americans'.

The only reason he complains of excessive respect for the Court is that it is insufficiently servile to liberal policy ends.

Would he like the Court better if it had ruled that the Prop 8 advocates had standing to defend it, and that courts have no business overturning democratically enacted laws without clear Constitutional cause?

No, he'd have been frothing with rage that the Court failed in its historic duty to uphold justice against democratic excesses.