Supreme Court ‘Supermajorities’
July 19, 2008 2 Comments
Ross Douthat with The Atlantic has an interesting blog entry regarding his idea to reform the Supreme Court.
Over the past few years of court-watching, I’ve gradually moved from supporting some version of Scalia-style originalism to a much more radical judicial minimalism, in which the Court would be obliged to show far greater deference to the other branches of government than either liberal or conservative jurists show today. (I have, of course, no qualifications to argue seriously for any theory of jurisprudence, but set that aside.) Of course, judicial nominees’ fine-sounding theories of minimalism have a way of collapsing upon contact with the kind of power the Supreme Court wields, so perhaps we ought to consider enforcing it – for instance, by requiring a supermajority of the Justices (either 6-3 or 7-2) to deem any existing legislation unconstitutional.
Essentially, this model would mean that whenever there are strong arguments on both sides of a given constitutionality question – the sort of situation that produces most of the 5-4, “how will Kennedy vote this time?” decisions – the Court would be forced to defer to the legislative branch. The theory would be that in a polarized Court, if you can’t convince at least one Justice who doesn’t share your ideological preconceptions to side with you – and there are plenty of recent cases where John Roberts has done exactly that, so it isn’t a pipe dream – the issue should be left to the public and their representatives to hash out.
While I have long been an admirer of the Supreme Court and I tend to difer to them on the judgement of most issues, I think there is also some real merit to Mr. Douthat’s idea. If we hold to the noble theory behind our style that our elected officials represent the will of the people, then maybe it IS important to not let their laws be overturned by slim majorities of the Supreme Court.
From a strictly-originalist point of view, the Supreme Court does not have any authority to rule something unconstitutional. Article III of the United States Constitution establishes the existence of the court, but not its purpose. Its role as constitutional watchdog is self-appointed. Judicial activism has a long history, going back to Marbury v. Madison.
Burrowowl, that’s a theory of originalism that would require breaking the entire law to resurrect, and while there’s some suggestion that it wasn’t “intended” to rule things unconstitutional, the “legislative history” of the Constitution, and the words of the Founders themselves, suggest the implicit if not explicit need for a branch to do judicial review of legislation.
As for the linked blog post, that’s a nice thought that underestimates and misperceives the role of the Supreme Court. If the role of the Court is to safeguard the Constitution – and you’re being generous with your assumptions about the benign electorate, so I’m going to be just as generous with the Court – the Constitution should always trump the people, even if a bare majority agrees that the Constitution so demands.