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If the Supreme Court Is Simply Partisan, Eliminate Judical Review

Journalists who are not lawyers intone about the partisanship of the Supreme Court at their peril. They simply presume the justices are politicians and don’t make any attempt to evaluate their decisions as law. Thus, David Leonhardt in yesterday’s New York Times argued that the Supreme Court is a partisan institution, because almost all important decisions are decided on party line votes where partisan affiliation is defined by the party of appointing President. That “almost” does a lot of work. Surely the two most important decisions of the Roberts Court that taken together dwarf all other decisions were those upholding in part Obamacare and invalidating laws against same-sex marriage. Nothing else came close. And neither was decided on a “party line” vote. Indeed, the part of the Obamacare decision that invalidated the coercive requirement that the states sign up for  Obamacare’s Medicare coverage or lose all their Medicare funds was decided 7-2. And just this last term Masterpiece Cakeshop was decided by a similar margin.

But perhaps even worse is Leonhardt’s decision to label decisions as partisan without offering any discussion whatsoever of whether they are correct or not. Take Citizens United which he singles out for unreasoned opprobrium. That decision held that Congress could not impose blanket restrictions on for-profit corporations running independent ads supporting candidates around election time. Leonhardt is an employee of a for-profit corporation and its First Amendment protection is enormously important to his daily work, protecting it from all sorts of libel suits. He would no doubt strenuously oppose restrictions on the New York Times’ capacity to editorialize around election time, despite substantial evidence that the Times’ support can make and break local candidates’ chances in close races. But he wants to impose these restrictions on others without providing any reason for the difference. Justices do have to provide reasons and we can then judge their persuasiveness.

And if the Supreme Court is today an inherently partisan institution, his proposed remedies are either counterproductive or useless. Court packing will make the Court into a partisan football visible for all to see. Eighteen-year term limits might be a good idea to prevent superannuated judges from resolving technology laden questions, but they would increase partisanship. As the world changes, the importance of the partisan divides of yesteryear fade and new issues which divide previously united partisans arise. Thus, long serving jurists are likely to become less partisan over time. Leonhardt’s suggestion that the Chief Justice tamp down on partisanship by voting differently is foolish even on the terms of the essay, because he already has stated that Roberts is one of the partisans.

The better idea given Leonhardt’s premises would be abolish judicial review or at least make it subject to congressional override. Then we have no illusions, but recognize that laws stand or fall on a partisan basis, and elected politicians would be accountable for their choices over time. It is hardly an unthinkable system. Britain had it until recently.

To be clear, I don’t agree with Leonhardt’s premises. I do not disagree that partisanship affects the Supreme Court. Justices are only human. But if they are less partisan than other political actors (and I think they are), judicial review can still be justified. And I have suggested before, the way to improve judicial review is to make constitutional law look more like bankruptcy law, following the legal meaning of its provisions no less than other more obscure legal enactments which justices often interpret through unanimous votes.

Reader Discussion

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on September 25, 2018 at 08:02:16 am

This poses an excellent point: do we need the Supreme Court as the Supreme Legislature? The legislature (with a limited role from the executive) is the place for opinion as to what the law should be. We do not need another layer on top of that as to what the law should be. The role of the court is to identify what the law is, with particularity to specific cases. If the courts abandon that role, then who needs them? They would be seeking a job that is already taken and structured, with the accountability to the electorate that is sovereign. Should judges appointed for life seek to legislate from the bench, they not only depart from their duty, they assume from the people a sovereignty that has not been given to judges.

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Wayne Abernathy
on September 25, 2018 at 08:39:05 am

"Justices do have to provide reasons and we can then judge their persuasiveness."

Apparently, journalists labor under no such obligation!

Also, I wonder if McGinnis is as certain of the non-partisanship of the Lower Courts as he is of the Supreme court? - when every day brings news of Judges declaring such things as (see todays news on) grizzly bear hunts in the West are not to be allowed because the government did not take sufficient account of the effects of such hunts.
Who the hell told the Judges that it was their job to determine what was "sufficient' as opposed to the Legislature (or even a duly empowered agency)?

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gabe
on September 25, 2018 at 08:42:22 am

The author makes some very good points. In my view, SCOTUS has become hyper-partisan, but only in proportion as the rest of the country. Still, I agree, this does not "justify" eliminating judicial review.

Respectfully, but oddly, the author suggests Obergefell was not decided along party-lines, I presume because Kennedy is Republican, and the four dissenting conservatives dissented along four separate lines. Even leaving Obergefell up for debate, the author’s other cites - the 7-2 Obamacare and Masterpiece Cakeshop decisions as evidence of major decisions that do not follow “party-lines” - are nearly as dubious.

The ruling in Obamacare, in my view, clearly was constructed on extremely narrow grounds to pull enough conservative justices into assent. The ramifications of this liberal decision have had monumental ramifications on the country.

Conversely, the ruling in Masterpiece Cake, (again, in my view), was constructed on extremely narrow grounds to garner enough liberal justice’s assent. The ramifications of this “conservative” in name only decision, has had such minimal ramifications on the country as to, within in months of the decision, land Mr. Phillips back in court.

In each example, as has become the left’s way - an unwillingness to compromise - or rather winning disguised as compromise; the partisan liberal view has clearly been victorious.

The prevailing philosophical direction of the Legal Academy can’t be too discounted, in any of the three branches, where lawyers predominate. It reminisces of that old Carol, “We Three Kings of Orient Are”*, as if the Academy were the Star of Bethlehem, and the three Branches, the “Three Kings”; it doesn’t take much tinkering to the lyrics to describe the effects of the Law Schools on the direction of our government:

“We three kings, [Disoriented] are”

[Left}ward leading, still proceeding,
Guide us to thy perfect Light.

To our perfect mess!

If you want to repair SCOTUS you must first repair Congress (and, the Executive). If you want to repair Congress, you must first repair the Political Parties. If you want to repair the Political Parties, you must first repair American Culture, and its social and moral philosophy. The Framers of the Constitution could not fathom a people as we have become. Progressives are becoming increasingly aware, that they cannot achieve their goals under this Constitution as framed.

It's really that simple; it’s really that insurmountably hard. Our Institutions merely reflect what we have become, if not as a whole, as predominant. Or, at least as concentrated in the governmental ranks. We get what we want, or at least what we permit.

* "We Three Kings of Orient Are" by John Henry Hopkins Jr. (1857)

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Paul Binotto
on September 25, 2018 at 11:54:54 am

Publius in Federalist 78 agrees:

"The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT [i.e., 'If the Supreme Court Is Simply Partisan'], the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body."

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Forrest Nabors
on September 25, 2018 at 11:55:37 am

"And I have suggested before, the way to improve judicial review is to make constitutional law look more like bankruptcy law, following the legal meaning of its provisions no less than other more obscure legal enactments which justices often interpret through unanimous votes."

Wouldn't that mean that approximately 99% of all federal rules and laws would be declared unconstitutional? Be still my beating heart.

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Vangel Vesovski
on September 25, 2018 at 12:43:38 pm

No doubt, we can know through both Faith and reason, that when our Constitution no longer serves to secure and protect our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, that can only be endowed to us from The True God, tyranny, eventually, will prevail, as we render onto Caesar or ourselves, what belongs to God.
Let no man deceive you, a Nation that identifies persons according to sexual desire/inclination/orientation, sexually objectifying the human person, in direct violation of God's Commandment regarding lust and the sin of adultery, thus making it appear that the desire to engage in a demeaning act of any nature, can change the nature of the act, is a nation that no longer recognizes our inherent, unalienable Right to be treated with Dignity and respect in private and in public, is unalienable, and thus cannot be relinguished, even if we so desire, because our unalienable Rights come from God, The Author of Love, of Life, and of Marriage.
Caesar is not The Christ.
Lust is Love's counterfeit.
If it were true that our Constitution serves to secure and protect the equality of sexual acts and sexual relationships, and on this our inherent unalienable Right to Life, to Liberty, and to The Pursuit of Happiness depends, if it is just a symbol, "to hell with it".
Thank God, our Constitution is not just a symbol, but a "moral guidepost", a means to "form a more perfect Union, establish Justice, insure Domestic Tranquility, provide for the common defence, promote the general Welfare, and secure The Blessings of Liberty to ourselves and our Posterity", which includes the unborn.
If the various branches of our Government have become partisan, it is because of a denial of The Spirit of Divine Law, upon which our Constitution depends.

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N.D.
on September 25, 2018 at 13:46:13 pm

The problem I have with Kavanaugh is that *he* wants to eliminate judicial review, in that he allocates that power to the President to determine which laws are constitutional or unconstitutional, and to obey only the laws that he or she happens to feel like obeying. People complained about that with President Obama--and yet people seem to feel that this is a good power to formally give to President Trump. Marbury v. Madison, where are you when we need you?

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excessivelyperky
on September 25, 2018 at 15:00:32 pm

Madison v. Marbury is just a bunch of Marshall's Federalist dicta - T. Jefferson.

BTW: What in the name of God do the asterisks clustered about the word "he" signify?

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EK
on September 25, 2018 at 15:15:13 pm

Since 1942, the Supreme Court has exercised nothing but its will in cases of consequence.

As some kind of supreme court is fixed in the Constitution, and as the existing Supreme Court has consistently exercised its will as opposed to its judgement, then it follows that the Supreme Court is merely imposing the ideological preferences of the ruling class.

Accordingly, its role in government must be severely restricted. It follows that its jurisdiction must be limited and it must be forbidden to use stare decisis in constitutional matters.

The Federalist Papers are nothing but Federalist propaganda.

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EK
on September 25, 2018 at 15:23:38 pm

EK:

Surely you did not miss the intent of the *perky* creature by placing asterisks around "he". It must mean, at least to perky's addled mind that it is questionable whether Kavanuagh is a "he". This would be as consistently unintelligible as the other flatulence emanating from perky's pen.

And in case you don't know it PERKY, "It is emphatically the province and duty of the[Three] Department[s] to say what the law is."

Marshall arrogated to himself and the Court an *EXCLUSIVE* right to define the constitution - a power found nowhere in the constitution; nor is there any prohibition against constitutional interpretation upon the other two Branches of government.

Now back to sniffing the abundant kerosene fumes found in your parents basement.

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gargamel rules smurfs

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.