Friday, July 01, 2005


I am REALLY not looking forward to a confirmation battle. Does the Supreme Court have too much power?


Blogger Tally Ho said...

I think that finding the optimal "amount" of power for the Supreme Court is next to impossible. Given that one of it's major functions is to provide a safeguard for minorities we're always going to find decisions that directly contradict majorities in a way that seems to go against the "fair" way that we've been taught to make decisions in a group. All I know is that the system, as it is, has been pretty stable.

On a seperate note, I've heard that Bush might nominate a legitimate moderate for O'Connor's spot so that when Rhenquist goes he can put a real zinger in as Chief Justice. What do you all think?

8:39 AM  
Blogger Vergasy said...

I don't think the Supreme Court has too much power. I think the right has really pushed this view because it's the only branch of government they have strong control over. Once they've got the courts they're gonna go after academics, while still working on the media of course.

The stock law school answer: the Supreme Court is limited in that it can only address issues that are brought before it -- it can't seek out topics of its choosing. It has no independent enforcement power -- it depends on the executive for that. It can't make positive law like the legislature. Furthermore, the Senate and the President both have their say in the Court's composition, and Justices can always be impeached. Finally, although they are more insulated than the other branches of government, I'm certain public opinion and sentiment is a big constraint on/guide for the Court.

I object to TH's statement that "one of it's major functions is to provide a safeguard for minorites." I thought the Court's job is to apply the law and, after Marbury v. Marshall, strike down those laws that violate the Constitution. They should only aim to protect minorities to the extent that the Constitution protects minorities. Maybe they have ended up protecting minorities, but I wouldn't call that the one of the Court's purposes. (See my brief discussion of legal nihilism in a post above for a different take.)

12:23 PM  
Blogger Tally Ho said...

V - Your 2nd paragraph reminds of a quote from Rawls in "The Voice of Public Reason" - "The Constitution is not what the Court says it is. Rather, it is what the people acting constitutionally through the other branches eventually allow the Court to say it is."

With regard to the 3rd paragraph,clearly protections for minorities as enumerated by the constitution is the bench mark, but because the court interprets the document I think that as things evolved the court has certainly come to recognize minorities that had previously existed without recognition or protection. And given the arguments against allowing a majority faction to reign supreme in the Federalist Papers I'm pretty sure the that the protection of minorities by the court was certainly forseen as one of many purposes that an independent judiciary was meant to serve.

5:50 PM  
Blogger Vergasy said...

Dammit. That should have been Marbury v. Madison, not Marbury v. Marshall. How embarassing.

As for the Court interpreting the Constitution, it wasn't until Marbury v. Madison was decided around 1800 that it was clear that it had the power to interpret the Constitution at all as opposed to just apply the laws created by Congress. Congress after all takes its own oath to uphold the Constitution, and the Constitution doesn't say whose interpretation is superior. Regarding the Federalist Papers, weren't they written by partisans trying to influence popular understanding of the Constitution to bring about their vision of it?

7:19 PM  
Blogger Tally Ho said...

I truly wished I had caught Marburry v. Marshall. I don't know too much about the case anymore, but I feel like it occurred in order to patch up a whole that could be exploited once the framers were gone. I mean the whole thing was a set up anyway.

Re: the Federalist Papers. As much as they were partisan at the time they're also sophisticated political philosophy intended to explain why the Constitution as drafted was better than alternative proposals. My point there was simply that the role of the court in protecting minorities was intended.

7:54 AM  
Blogger Vergasy said...

I don't dispute by the Federalist Papers are sophisticated political philosophy, but they should viewed critically when used them as evidence of the Framers' intent. Certainly they were evidence of what some Framers wanted, but certainly not everyone agreed with them. Madison, Jay, and Hamilton very much wanted one particular (disputed) interpretation to prevail, and their writings should be read with this is mind.

6:27 PM  
Blogger Tally Ho said...

But it's because of, not despite, their particular vision that it can't dispute that at least some of the founders envisioned one of the court's roles as being to protect minorities. I'm not claiming that all the founders thought this was one of it's roles, just that there were some who intended that it be.

7:46 PM  
Blogger Vergasy said...

To make the argument from intent for a particular interpretation I think you at least need to argue for a plurality -- 3 doesn't cut it. Also, it's not guaranteed that what they wrote in the Federalist Papers is their actual view/understanding/intent -- they were trying to convince people to support it, not create a historical record of their view/understanding/intent. It was a sales job.

8:32 PM  
Blogger Tally Ho said...

There's a certain standard for arguments in public debate which basically states that an argument has to have the force of reason behind it and then it can be introduced for people to evaluate. So for instance we should cut taxes for the rich because I'm rich doesn't fly, but we should cut taxes on the rich because it will help the economy is okay. As long as the arguments in the federalist papers meet this standards it might not matter if the people putting them forth believe them as long as other rational people believe that they are strong arguments.

1:08 PM  
Blogger Vergasy said...

I don't necessarily disagree with anything you've said, but "having the force of reason behind it" isn't typically the standard for gauging what the law is, which is where I believe this argument started. Text and intent tend to be the touchstones for such an inquiry. A "force of reason" or popular acceptance standard, while perhaps not inaccurate in practice, makes it pointless to talk about the Constitution at all.

3:40 PM  
Blogger Prof. Schwarzenegger said...

Speaking as a sensible person from the right (or should I say the sensible person from teh right), I have to say taht I don't think the Supreme Court has too much power. What they do have is a problem with properly using its power.

I know that it's always a fine line between doing what is right and/or constitutional and acting as a super-legislature. We can't have full majority rule otherwise it is tyranny of the masses. At the same time, there are certain decisions that should be left to 9 people chosen from the top .001% of the academic world, appointed through a political process, and free of nearly any check from taking decisions out of the hands of the people.

What would our founders say - hell, what would people even from the early 20th century say - if they were told that the Supreme Court would have the ability to appoint a president, create "fundamental rights" or "liberty interests" simply because they thought it was a good idea, or could pretend that America has so changed in 15 years to change capital punishment from an acceptable option to cruel and unusual punishment.

The secondary problem of much of this is that the words become to ring meaningless. The cases simply are filled with fluff before they make their decision. What is a liberty interest and where did it come from? Who gave you these fundamental rights? Was it God? Was it John Locke? Was it O'Connor? Who was it?

Need an example, take a look at the juvenille execution case. It's a joke. It makes no sense whatsoever when you really start breaking it down. It picks and chooses some "law" or soundbytes from cases to create a framework and then simply makes the decision. If you want an excellent criticism of that case, just scroll to the end and read Scalia's dissent. It sums it up nicely.

Sure, the right is fired up right now, but that's only because they're losing the cases. When they start winning, nobody will say anything. Look at Bush v. Gore. Where's the law behind that? But nobody on the right was bitching about judicial activism then.

As the court ventures more and more into the political, the less and less credibility it has. It should be a neutral arbitor. If you don't like the rules of the game, you don't protest to the ump, you protest to the rules commission.

Does the Supreme Court have too much power? No. Do they have a problem with control? Yes.

8:37 PM  
Blogger Tally Ho said...

V - I'm not talking about the standard for the law because reading the constitution, whether the reading is being done by ain independent judiciary or you or me (assuming the two don't over lap), is necessarily pre-legal. The constitution can't apply itself so some manner of interpretation will occurr, even by those who strive for literal interpretation. What I am saying with regards to the standard of reason is that it can (and maybe should) be used to determine that manner in which this interpretation will occur. So I guess what I'm saying is that we can accept the arguments of the Fed. Papers as one of the ways of gauging the intentions of the Framers about how the Constitution should be intrepreted - court protecting minorities etc . . . as long as we believe the arguments put forth in them pass the standard of reason.

Relatedly isn't there really no concept as "the law." There's law as perceieved and then enforced but no "law" in the same way that there is a square.

I'm way out of my comfort zone here but it's making me think about taking some legal theory stuff next semester.

6:28 PM  
Blogger Tally Ho said...

Prof S - Your post is interesting especially in light of some of Scalia's dissent with respect to the 10 commandments decision he was on the losing end of.

With regard to the founders intent that the Const. be a living document and that the ammendment process probably couldn't move fast enough to do this what do you think would be an acceptible alternative to the the court's control? I don't really have a strong or well informed position on this, but I'm curious about what the law folks reading think.

6:34 PM  
Blogger Prof. Schwarzenegger said...

Again, I don't think the Supreme Court has too much power - I think it uses too much power. Think of the court's power like a big ass bomb. Now, a big ass bomb is a good thing to have around if you're going to use it properly. You can stop all sorts of problems - from eliminating "freedom haters" to keeping a few South Carolina rebels in line. At the same time, put the big ass bomb in the hands of a terrorist or 60-70% of the right wing, and you could have a big problem.

The Court's power is important when it is time to address problems such as segregation, forced religion, internment, etc. These are times when the majority will prevent action in line with the constitution. For example, the 14th Amendment was meant to eliminate unequal treatment between the races, but the majority wouldn't allow that to happen.

The 14th Amendment was not meant to allow gay marriage, protect abortion, prevent laws on sodomy, guarantee access to contraceptives, etc. Now, don't get me wrong, I'm all for some of these things - but that's why we have a political process. We have a legislature to decide these things. You can't just allow the good ideas of 5 justices to trump this. They begin to use their power not to ensure that we remain within the framework, but to make political choices.

Again, the problem with political choices is that when the politics change, there is nothing to stop it. You can no more say that there is a constitutional right to abortion than I can say there isn't one - at least if we start making political calls.

If, on the other hand, we write things down, then everyone knows where we stand. You can't say that there isn't a right to possess firearms. Now, we can debate about how far this extends, but at least there is something there to base the decision off of.

Now, the obvious argument is "fine, then why can't we debate about how far 'equal protection' extends? Why not say that it extends to gay marriage?" The problem with this argument is that gay marriage isn't what we wrote down. Nobody thinks they actually wrote that. The argument basically defeats the point of writing everything down.

If I can write down "red" and you can say that it also means "green" because I was really refering to waves of light, then we've defeated the purpose. Then the next person comes along and says that it also includes "heat" because if I was already referring to waves of light, I really meant energy and heat is just another form of energy. Suddenly I don't have a red stop sign, I've got a heat emitting torch.

Yes, the Constitution is a living document in a certain degree. We don't have militias and quartering of soldiers means something different today. Search and seizure has taken on a whole new meaning. In that sense, we must use the constitution as a framework. But when these decisions begin to become more about political choice, then it's no longer a "living document," but a blank check for 5 justices.

7:09 PM  
Blogger Vergasy said...

My response here is gonna take a bit more time (and citations to HLA Hart and Lon Fuller) than the 30 seconds I have now. Also, I think we are kinda talking past each other at this point.

Short answer:
First, yes law must be interpreted, but that doesn't mean we can't still have at least a descriptive theory of the law. Second, more or less as before: applying a standard of reason test to determine what the law is amounts to the "do what's right" test Prof S mentioned earlier, which tends to violate a lot of what we would consider basic rules of law (equal treatment of like cases, notice of what the law is, etc).

Interesting side question: where does the binding power of the Constitution come from if it commands us to do what's wrong in certain instances? Pragmatic reasons arising from efficiencies of coordination and (ha!) certainty?

12:41 AM  

Post a Comment

<< Home