Wrongo, Sandy Baby: Independence is not omnipotence

[Bonnie]

http://americandaily.com/article/13623

In an April 16th interview with CBS News, former Supreme Court Justice Sandra Day O'Connor complained about "threats for retribution against judges for certain decisions" by state and federal legislators. "I mean, that's contrary to every notion of judicial independence that we know, from the time that the Constitution was adopted."

Paraphrasing the kinds of threats she'd heard from congressmen, she said, "Let's deprive them [the Supreme Court] of jurisdiction over certain kinds of cases." Such a suggestion may offend Justice O'Connor, but it does not conflict with the Constitution, which specifically assigns that power to the legislative branch.

The second clause of Article III Section 2 says, "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." (emphasis added)

So Congress does have the authority to make exceptions to the cases over which the Supreme Court has jurisdiction. But doesn't that violate the principle of "judicial independence"? Not where the Constitution is concerned, because that phrase appears nowhere in the document.

While O'Connor was reflecting on our historic notions of judicial independence, the one that was held by Alexander Hamilton must have escaped her notice. In Federalist 81, Hamilton argued that the Supreme Court should be a "separate and independent body," in contrast to the British system, in which the Supreme Court is contained within the House of Lords. What he meant by "independent" in this context was that the judiciary should be its own separate branch of government, not that it should be
immune to constitutional checks and balances.

In fact, Hamilton suggested remedies for judicial activism that today's champions of "judicial independence" would consider dangerous and extreme. In that same essay, he argued that the judiciary could never get away with encroaching on legislative power, because of the retaliatory measures made available to Congress.

"This may be inferred with certainty," he continued, "from the general nature of the judicial power.... from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. There
never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations."

Tragically, these assurances have turned out to be false, for the simple reason that the legislature has refused to guard its power by availing itself of the tools that Hamilton prescribed. His theory was that any attempt by the judiciary to create law would send the lawmakers into a righteous fit of jealousy. Disappointingly, many of our congressional representatives have reacted instead as if they were relieved to have the legislative burden lifted from their shoulders. As a result, judicial
activists like O'Connor have only become bolder over the years, to the point where they now deny that Congress has the power to affect them at all.

When Rep. Tom DeLay (R, Texas) echoed Hamilton with his opinion that judges who assume the power to legislate should be subject to impeachment, Justice O'Connor responded by blaming his rhetoric for two violent attacks against judges. Neither of the attackers was motivated by sympathy with DeLay's remarks (one was a disgruntled plaintiff, and the other a defendant in a rape trial), but never mind. O'Connor found it necessary to malign the congressman in this way, as a means of protecting
"judicial independence."

The reason for O'Connor's defensiveness is clear to anybody who is familiar with her record. It was she who, with Justices Souter and Kennedy, jointly issued the majority opinion in the 1992 Planned Parenthood v. Casey decision. In it, they held that legal abortion should continue to be imposed on all fifty states because, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." It's hard to imagine a greater
usurpation than that. If applied consistently, it would render all criminal legislation moot, by granting transgressors the power to simply redefine the facts.

In 2003, O'Connor wrote the majority opinion in Grutter v. Bollinger, in which she decided, dubiously, that a race-based law school admissions policy did not violate the equal protection clause of the Fourteenth Amendment. She did allow for the possibility, however, that it might cease to be constitutional after 25 more years had passed. Perhaps some antibodies in the "living Constitution" will have attacked it by then.

When O'Connor refers to judicial independence, what she really means is independence from checks and balances, independence from the written law, and independence from virtually any form of accountability.

If the judicial branch cannot be punished for seizing legislative power, then this so-called "judicial independence" actually amounts to a repudiation of Hamilton's concept of a "separate and independent" Supreme Court. The two bodies cannot be separate if the judiciary subsumes the legislature, any more than if that situation were reversed.

Since the purpose of The Federalist Papers was to explain the virtues of the Constitution, one would hope that federal judges would heed the words of its authors. But then, why would they? The Supreme Court has a long history of rejecting the language of the Constitution itself, in favor of the justices' own presumptions. There's no reason to expect another of our founding documents to be treated any more respectfully.

 

[ScreamingEagle]

When O'Connor refers to judicial independence, what she really means is independence from checks and balances, independence from the written law, and independence from virtually any form of accountability.

This is exactly how the liberal socialist elites plan to to expedite their policies...by sneaking through the back door using just a few "independent" judges who think they have no accountability to us, the voters.

We need more Congressmen like Tom DeLay who are willing to impeach justices on the Supreme Court....forget O'Connor as she's already history....let's start with the Court Communist,
Ruth Bader Ginsberg!

 

[Bonnie]

This is exactly how the liberal socialist elites plan to to expedite their policies...by sneaking through the back door using just a few "independent" judges who think they have no accountability to us, the voters.

We need more Congressmen like Tom DeLay who are willing to impeach justices on the Supreme Court....forget O'Connor as she's already history....let's start with the Court Communist,
Ruth Bader Ginsberg!

What a smart man Hamilton was huh?

 

[Diuretic]

When O'Connor refers to judicial independence, what she really means is independence from checks and balances, independence from the written law, and independence from virtually any form of accountability.

I hate this dishonest form of argument. O'Connor meant what she meant. For some commentator to come along and interpret her words to mean something else is just intellectual dishonesty.

Anyway the whole argument about judicial independence and so-called judicial activism is built on sand. The very point about the separation of powers is that it underpins the concept of a liberal democracy. People who rant about judicial activism usually are moaning about a decision they don't like. If an executive controls a judiciary then there is no liberal democracy. If you want a judiciary under the control of politicians then fine, go for it. You won't like it though.

 

[Abbey Normal]

I hate this dishonest form of argument. O'Connor meant what she meant. For some commentator to come along and interpret her words to mean something else is just intellectual dishonesty.

Anyway the whole argument about judicial independence and so-called judicial activism is built on sand. The very point about the separation of powers is that it underpins the concept of a liberal democracy. People who rant about judicial activism usually are moaning about a decision they don't like. If an executive controls a judiciary then there is no liberal democracy. If you want a judiciary under the control of politicians then fine, go for it. You won't like it though.

But the Judiciary usurping democratically elected representatives makes you feel all warm and fuzzy?

As for your comment that O'Connor "meant what she meant", whether you agree with it or not, the author's interpetation is logical. Are you somehow more qualified to interpret what O'Connor meant than the author?

 

[jillian]

I hate this dishonest form of argument. O'Connor meant what she meant. For some commentator to come along and interpret her words to mean something else is just intellectual dishonesty.

Anyway the whole argument about judicial independence and so-called judicial activism is built on sand. The very point about the separation of powers is that it underpins the concept of a liberal democracy. People who rant about judicial activism usually are moaning about a decision they don't like. If an executive controls a judiciary then there is no liberal democracy. If you want a judiciary under the control of politicians then fine, go for it. You won't like it though.

It isn't the place of Congress or the Executive to construe the Constitution. Doing that would destroy the Constitutional protections against tyranny of the majority. The executive administers, the legislature passes laws, the Courts make sure those laws comply with the Constitution.

And wondering when Sandra Day O'Connor became a "liberal jurist".... I suspect she'd be quite surprised to hear that.

And the thought of "impeaching" justices for their decisions..... *shiver*

 

[Diuretic]

But the Judiciary usurping democratically elected representatives makes you feel all warm and fuzzy?

As for your comment that O'Connor "meant what she meant", whether you agree with it or not, the author's interpetation is logical. Are you somehow more qualified to interpret what O'Connor meant than the author?

I don't see it as usurping anyone. The touchstone for any judiciary is the law. The law is made by the legislature. The legislature is bound by the constitution as to what it can make law on. The judiciary is also bound by the constitution and also by its own precedents. If a legislature tries to make a law that is out of whack with the constitution then it's the judiciary that has to rein them in and point to the constitution. That's just team play in my book, everyone doing their job.

On the author's interpretation question. My qualifications or lack of them are irrelevant. The author's logic is faulty. When someone writes what she really means my bullshit detector goes to red. Since the author is not interrrogating O'Connor about "what she really means" and I believe the mind-reading is not yet possible, it must be that the author is merely re-interpreting O'Connor's remarks in a way suited to the author. That's intellectually dishonest. O'Connor did not claim "independence from checks and balances, independence from the written law, and independence from virtually any form of accountability." A responsible journalist would have either put that to O'Connor and recorded a response or would find evidence which points to O'Connor wanting what is claimed.

 

[Abbey Normal]

I don't see it as usurping anyone. The touchstone for any judiciary is the law. The law is made by the legislature. The legislature is bound by the constitution as to what it can make law on. The judiciary is also bound by the constitution and also by its own precedents. If a legislature tries to make a law that is out of whack with the constitution then it's the judiciary that has to rein them in and point to the constitution. That's just team play in my book, everyone doing their job.

On the author's interpretation question. My qualifications or lack of them are irrelevant. The author's logic is faulty. When someone writes what she really means my bullshit detector goes to red. Since the author is not interrrogating O'Connor about "what she really means" and I believe the mind-reading is not yet possible, it must be that the author is merely re-interpreting O'Connor's remarks in a way suited to the author. That's intellectually dishonest. O'Connor did not claim "independence from checks and balances, independence from the written law, and independence from virtually any form of accountability." A responsible journalist would have either put that to O'Connor and recorded a response or would find evidence which points to O'Connor wanting what is claimed.

If they were behaving as in the bolded sentence, we would have no disagreement. The problem is they are not. The most intellectually dishonest claim of the last 3 decades, is that the Courts are not making agenda-based decisions, and then backing into them via tortured Constitutional interpretations.

The writer may or may not be pushing an agenda, you do not know, but he did not pull a rabbit out of his hat. His points were logical, and buttressed by O'Connor's own voting record. Who's to say but you are being intellectually dishonest, and basing your opinions of the article on a pro-judicial activist agenda of your own?

Sorry, D, but the fact that your personal BS detector goes off is not a very compelling argument against the author or his opinions.

 

[jillian]

Personally, I think someone's BS detector should go off when someone who's trained to be an exterminator, like Tom Delay, thinks he knows more about the Constitution than Sandra Day O'Connor.

 

[Annie]

Another voice, lots of links, (mostly legal writings, but quite interesting):

http://volokh.com/archives/archive_2006_05_14-2006_05_20.shtml#1148132557

[Randy Barnett, May 20, 2006 at 9:42am]

Legislative Restraint: In the thread about "judicial negation," a commentator raised the remarkably resilient myth that judicial review was created or invented in Marbury v. Madison. For those who are interested in the evidence on this question, I offered my article, The Original Meaning of the Judicial Power. Andrew Hyman of ConfirmThem.com agrees, offering Hamilton's argument from Federalist 78 that the evidence shows was a commonplace view at the founding:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
​

Andrew then makes the following interesting observation:

Of course, the Supreme Court has long since abandoned Hamilton's test of "irreconcilable variance" in favor of a test resembling "plausible variance." In other words, it's not judicial review that's truly controversial, but rather the manner in which it's exercised.​

While, there is much to be said about this, let me offer the following thoughts. First, though the evidence of this is far more fragmentary than that which establishes the power of judicial nullification, from my reading, judicial deference as exemplified by "Hamilton's test of 'irreconcilable variance'" was probably the dominant view. The fact that Jefferson too articulated this view as Secretary of State in the context of the debate over the national bank, which he opposed and Hamilton supported, is evidence that the view was commonly held. Second, while Hamilton's statement precedes the Constitution, after ratification, this degree of deference corresponded to lengthy and very serious debates in Congress over the extent of its constitutional powers--most notably during the first major constitutional controversy involving the first Bank of the United States. Third, judicial deference seems to have persisted up until the Progressive and Populist movements began to undermine the American commitment to broad liberties of the People and limited legislative powers. Fourth, when judges who had been trained in the previous culture of legislative restraint confronted manifestations of the new "Progressive" and "Populist" philosophies of agressive governmental solutions to "social problems" they resisted by becoming somewhat less deferential. Fifth, this less deferential stance by judges was overcome by the political triumph of Progressivism in the form of the New Deal, and judicial appointments by President Roosevelt, ushering in a period of judicial deference on matters of constitutionality in the face of legislative activism.

One way of framing the issue of judicial deference is to ask: "deference to what?" Many mean "deference to the policy judgment of the legislature." With that proposition few disagree. But what the debate is also about is deference to the constitutional judgment of Congress that a particular act is within its powers. When Congress was exercising "legislative restraint" by considering itself bound by limited and enumerated powers, its judgment on this question may have merited the deference showed to it by Hamilton, Jefferson, and others as well. But when Congress has abandoned any sense of constitutional limits, then there would seem to be no real judgment of constitutionality to which to defer. In this, Congress has been aided and abetted by the post-New Deal Supreme Court and by law professors who would take judicial power even farther than the New Deal justices actually did.

The next question is whether an originalist is committed to the attitudes of the founders towards judicial restraint, in the face of legislative activism that took 100 years to develop. The answer to this question is worth debating and raises tricky methodological issues. I, for one, do not think we are bound by such an unwritten doctrine. Deference is a prudential doctrine that assumes there is a judgment to which to defer. When that assumption proves false, the doctrine (which is really no where in the Constitution) may be altered. In my book, Restoring the Lost Constitution, I propose adopting a "presumption of liberty" by which the burden is placed on Congress to establish that its laws are truly "necessary and proper"—what it used to debate but no longer. I think experience with the scrutiny given laws governing the freedoms of speech and press strongly suggests that Congress will be more circumspect if courts are less deferential. Paradoxically, this would result in a congressional judgment of constitutionality to which courts could defer. But the New Deal experience teaches where courts give Congress carte blanche, it will push beyond any limits contained in the written Constitution. If this is right, then legislative activism is itself a product of judicial restraint on the issue of congressional power. The result of this judicial abdication is a fundamental alteration of our constitutional order without benefit of constitutional amendment. (Civil comments only please.)

Related Posts (on one page):

1. Responses to Comments on "Legislative Restraint":
2. Legislative Restraint:
3. "Judicial Negation is Not Legislation":

 

[Diuretic]

If they were behaving as in the bolded sentence, we would have no disagreement. The problem is they are not. The most intellectually dishonest claim of the last 3 decades, is that the Courts are not making agenda-based decisions, and then backing into them via tortured Constitutional interpretations.

The writer may or may not be pushing an agenda, you do not know, but he did not pull a rabbit out of his hat. His points were logical, and buttressed by O'Connor's own voting record. Who's to say but you are being intellectually dishonest, and basing your opinions of the article on a pro-judicial activist agenda of your own?

Sorry, D, but the fact that your personal BS detector goes off is not a very compelling argument against the author or his opinions.

Okay well the bs detector was merely an illustration, not a claim. On the substantive issue of legal interpretation by the courts it's the same debate that has been happening in my country for years as well. It's distorted by politics. One side says stick to strict legal interpretation (as we say here "black letter law") the other says interpret within a social purpose prism. One is seen as conservative, the other as "progressive".

My objection to this article is this tactic of interpreting a claim made by someone else, on flawed or no evidence, and then attacking it. The poor old straw man is getting a flogging these days.