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Roberts Must Recognize that the Court Also Errs in Striking Down Laws

Chief Justice John Roberts made a speech this week at the University of Minnesota Law School. He made some good if not very controversial points. For instance, he noted the Court strives not to be a partisan institution: the judges work together regardless of the party that appointed them and do so collegially. But he made one egregious misstatement. He said: “The Court has, from time to time, erred and erred greatly. But when it has, it has been because the Court yielded to political pressure.”

Now it is certainly true that the Court has sometimes bowed to popular pressure and misinterpreted the Constitution as a result. Plessy v. Ferguson provided a paradigm example when it upheld discriminatory laws that society deemed reasonable. But the Court has also erred when it has made the opposite mistake, wrongly striking down laws that were supported by the people and wholly constitutional. Some of its worst decisions were this latter kind of error. It made this mistake in Roe v. Wade which invalidated without justification abortion laws passed by state legislatures. It has also wrongly invalidated laws that commanded national support, as it did most egregiously in Dred Scott’s invalidation of the Missouri compromise.

What Roberts should have said is that the Supreme Court has historically made two kinds of errors. Type 1 errors occur when the Court upholds a law that it should have struck down, thus underenforcing the Constitution. Type 2 errors, on the other hand, occur when the Court strikes down a law that it should have upheld, thus overenforcing the Constitution.

Type 1 errors do indeed often occur because of political pressure from popularly elected officials and the people at large. But Type 2 errors have other sources. One is sadly partisanship. Dred Scott was a decision motivated in part by what Chief Justice Tawney saw as the interests of the Democratic Party. (He even secretly communicated the forthcoming result to James Buchanan, a Democrat about to be inaugurated as President). But another important source is pressure from elites against popular opinion. Roe is a prime example of this, but there are many others, including many of the cases in the so-called culture wars.

It is very troubling that the Chief Justice did not publicly call out this kind of judicial failure, because the Supreme Court justices are themselves all members of the elite, and thus susceptible to elite influence. Their reputations are largely in the hands of the press and law professors of today and the historians of tomorrow. The people at large do not have such mechanisms to exert pressure. No Supreme Court justice has ever been removed from office. Thomas Jefferson correctly said that judicial impeachment was a scarecrow.

Thus, the pressure to make Type 2 errors to satisfy the elite minority may be even greater than the pressure to make Type 1 errors to satisfy the popular majority. Recognizing that the Court may be at times wrongly invalidate popular legislation will not prevent judges from making Type 2 errors. But failing to recognize that kind of error will undoubtedly lead to more of them.

Reader Discussion

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on October 19, 2018 at 08:12:30 am

Interesting piece.

My opinion is that most of these type 1 and type 2 errors occur at the lower courts, whereby, only the most controversial is taken up by SCOTUS. When SCOTUS declines to grant review, (what in my view, is another form of deference of too little discussion) on the less controversial, the damage to the rule of law is no less real. By declining Cert, SCOTUS has in effect, granted an imprimatur.

The wheels of justice seem to demand it - like the classic instances of the Auto Manufacturers, whose business model allows/requires a certain "acceptable" level of known defects (and liability expenditures) to knowingly exist in the vehicle population; so too, the economy of the judicial system requires deference's to lower court judicial error.

It's at the lower court level where partisanship and political pressure is greatest and most effectuated.

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Paul Binotto
on October 19, 2018 at 09:07:19 am

John, what was Roberts doing in the Hawaii travel case? Did he overrule Korematsu, or simply follow elite opinion in condemning it? That struck me as an uncharacteristically sloppy moment.

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Ken Masugi
on October 19, 2018 at 10:03:49 am

Ken:

Explain! I thought he simply tried to deny its relevance to the Travel case and saw fit to include a gratuitous condemnation to satisfy, as you say, elite opinion. I suspect that this may have been the sop offered to elite opinion for failing to fully acquiesce to such opinion by not ruling against Trump.

Speaking of deference to "elite opinion":
Comes news today that the Washington State Supreme Court has deemed the criminal penalty of "life without parole" unconstitutional for juvenile offenders convicted of *aggravated murder* as cruel and unusual punishment.
The majority "reasoned" that it is clear that current opinion is changing as to the merits of such punishment and THUS the Court must respond (paraphrasing here).

(The court noticeably does not employ the adjective "elite" to modify (or clarify) WHAT opinion is changing.)

Gee - would that not be the role of the Legislative not the Judicial to consider changing public sympathies, elite or otherwise.

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gabe
on October 19, 2018 at 10:44:35 am

Thanks, Gabe. Here's my piece mentioning Roberts' opinion https://amgreatness.com/2018/06/30/trumps-hawaiian-volcano-the-scott-free-dread-of-korematsu/

My current argument is that discussion of Korematsu, pro or con, are incomplete without reference to ex parte Endo, decided the same day. Neither Roberts nor Sotomayor in dissent mentioned Endo.

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Ken Masugi
on October 19, 2018 at 11:28:38 am

And this takes the rhetorical cake as it were:

"An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts." Justice Kennedy.

In one compact sentence, the mystery loving Justice extends the UNITED STATES CONSTITUTION to the inhabitants of the entire planet. Yes, let us *extend* it all corners of the earth; not only that let us impose our particular view of liberty even to those who may abhor. Thus, our soldiers find themselves remaking medieval societies in the form of post-modern America.

Now that takes some gumption, Mr Justice Kennedy.

take care
gabe

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gabe
on October 19, 2018 at 11:29:56 am

Given that the federal courts must necessarily err in one direction or the other, they ought to always err in the direction of invalidating a law rather than upholding it, except a law that repeals/reduces the reach of a prior law or that lowers taxes. That is and should always remain the tilt of this country's Constitutional order.

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QET
on October 19, 2018 at 14:40:08 pm

Roberts said "yielded to political pressure.” He did not say what kind of pressure. One could imagine both politically popular pressure and elite pressure (in opposition to what the people want), as both different kinds of political pressure. In this way Robert's statement was correct. Although I guess the court sometimes makes mistakes without political pressure, I doubt this occurs very often.

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Devin Watkins
on October 19, 2018 at 16:11:51 pm

Obviously, Roberts was referring to his OWN bow to political pressure on Obamacare after the LightGiver informed the country, the world AND the Supreme court during a SOTU address that the court should not go against (elite) opinion (my words).

Apparently, it is not only death that makes cowards of us all but also elite opinion.

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gabe
on October 19, 2018 at 16:36:26 pm

What a curious post.

Roberts made what strikes me as an anodyne remark: “The Court has, from time to time, erred and erred greatly. But when it has, it has been because the Court yielded to political pressure.” I interpret this to mean that Justices should render decisions based on independent judicial reasoning, based on the record and law, not outside influences. I expected McGinnis to embrace this not-very-controversial aspiration.

Instead, this bland remark promotes McGinnis to lionize ... populism? I never, NEVER would have believed it.

[T]he Court has also erred when it has made the opposite mistake, wrongly striking down laws that were supported by the people and wholly constitutional.

So when the Court wrongly strikes down laws that are condemned by the people, yet wholly constitutional, that’s ok?

[The Court] has also wrongly invalidated laws that commanded national support, as it did most egregiously in Dred Scott’s invalidation of the Missouri compromise.

So if the Missouri Compromise had not commanded national support, then the Court would have been justified in striking it down?

Type 1 errors occur when the Court upholds a law that it should have struck down, thus underenforcing the Constitution. Type 2 errors, on the other hand, occur when the Court strikes down a law that it should have upheld, thus overenforcing the Constitution.

Type 1 errors do indeed often occur because of political pressure from popularly elected officials and the people at large. But Type 2 errors have other sources [such as] pressure from elites against popular opinion.

Let’s say that Muslims should have a free exercise right to wear burkas as a manifestation of their faith, much like Christians wear crosses. And let’s say that the elites condemn burkas as being sexist. Should this fact lead the Court to deny Muslims their free exercise rights? But wait—let’s add that the public also condemns burkas as a manifestation of the Muslim faith. Does McGinnis argue that the Supreme Court is now justified in denying Muslims this aspect of freedom of religion because doing so would NOT be against popular opinion?

[T]he pressure to make Type 2 errors to satisfy the elite minority may be even greater than the pressure to make Type 1 errors to satisfy the popular majority.

That may be so. But this pressure to conform to elite opinion would exist regardless of whether that opinion happened to coincide with majority opinion. Indeed, McGinnis’s implication that Justices face greater pressure to agree with the elites when doing so would frustrate the public than when doing so would appease the public is simply loopy. “After all, we all know that those naughty ELITES exist only to spite the will of the rest of us! The only thing that gives them pleasure is knowing that they’ve been able to rub some Average Joe’s nose in the dirt!” This is paranoia run amok.

I agree with McGInnis that we need to be careful not to get sucked into the culture wars and its mindless tribalism. And I think that this care should start on this web page.

At the risk of sounding as Polly-Annaish as Justice Roberts, let's exhort the Court to avoid Type 1 and Type 2 errors REGARDLESS of public opinion. Leave analysis of polling data to the other branches.

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nobody.really
on October 20, 2018 at 12:42:14 pm

"Roberts made what strikes me as an anodyne remark..."

Perhaps, McGinnis also made an anodyne remark. It strikes me that you read a bit too much in McGinnis's assertions here and credit him with a view(s) that may resonate more with your own particular tribal view. Deliberately inflating the (intended) import of another's arguments is also something that ought not to be practiced on this web page.

To my mind, McGinnis made a simple observation without then arguing that such an observed practice / defect was applicable to all related circumstances. In so far as McGinnis DID NOT make such a universally applicable assertion, he is correct.

In so far as nobody really asserts that McGinnis' assertion is not universally applicable, nobody is correct.
Hmmm! I guess that nobody has also made an anodyne remark.

Still searching for some "autumnal" mead, are we?

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gabe
on October 20, 2018 at 19:52:16 pm

One meaning of “the elite” is “In political and sociological theory, . . . a small group of powerful people who hold a disproportionate amount of wealth, privilege, political power, or skill in a society.” I don’t know what Professor McGinnis means by “the elite.”

A Supreme Court principle is equal justice under law. I see two aspects of this phrase. The first is justice the individual deems worthy, and the second is the discovery of that justice. Individuals who agree-to and conform-to the same laws are equal.

An opportunity to discover justice rests in acceptance of the preamble to the U.S. Constitution as the agreement on which fellow citizens collaborate to discover civic integrity, leaving spiritual integrity an individual pursuit. Every society within the people may divide itself on the preamble’s opportunity: that is, some fellow citizens are civic collaborators and some fellow citizens are dissidents. Individuals who oppose justice altogether segregate themselves from the people unless and until they reform. If the preamble is not a worthy agreement, the deficiency may be amended.

Classical liberty holds that justice may be determined by reason, and reason establishes the dominant opinion. However, reason often fails the-objective-truth. As long as justices hold that the unanimous-majority can discover statutory justice they will continue to invite error, subject themselves to political pressure, and be vulnerable to factional politics. Justices need a standard higher than themselves and their spirits.

The-objective-truth can only be discovered. That is, the-objective-truth does not respond to reason, imagination, intellectual construct, elitism, party, popular opinion, or other human constructs. By using the-objective-truth as the standard and the preamble as the agreement, fellow citizens including Supreme Court justices may establish civic integrity.

Roe v Wade as viewed by the ovum is a good example. Human life begins with the viable ovum a fertile woman produces. The ovum must be fertilized by a spermatozoon supplied by a man, producing a conception. The conception has a small chance to become a human person, which from birth takes about three decades' well-coached development. In the U.S., with about 800 million viable ova per year, there are about 4 million live births. Most viable ova perish for lack of fertilization, and unknown millions of conceptions perish because they do not attach to a womb. My estimate is that 5 million conceptions are spontaneously terminated by the physics of biology. The ultimate biological determination is the mom’s decision not to remain pregnant. By physics, the woman’s responsibility to decide whether to remain pregnant or not cannot be denied.

My estimate is that under 0.2 million abortions fall into the category MWW labeled “abortion for fun.” Reducing that practice is a matter of educating women and men to appreciate ova and not risk them to unwanted conception. The spontaneous terminations are not matters of opinion and are thus not subject to Supreme Court determination. That, I understand was the point of Roe v Wade. To refute it requires the hubris to both oppose the justice of the-objective-truth and to refute the equality and dignity of an ovum to be cared for by his or her mom and the conception to be gestated and delivered by mom with support from dad for life, with all due assurances for the couple’s grandchildren---the children’s children---and beyond (posterity). These concepts relate to the-objective-truth more than to religion.

It seems to me that conservative law professors are the most qualified to influence the people to adopt the preamble as the civic and civil agreement under which fellow citizens are either equal or not. That is, they accept equal justice under law or not. Further, by relegating tradition to its proper role as the record of reform, conservative law professors could influence the discovery of the-objective-truth as the basis for statutory justice. Often, humans must face that we do not know the-objective-truth.

The fact that conservative law professors do not take this seemingly natural role invites consideration of ulterior motives, which this fellow citizen does not pretend to know and is loath to imagine.

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Phil Beaver

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