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H. R. 3920: Congressional Accountability for Judicial Activism Act of 2004
by Cliopatria
A full dozen members of the US House of Representatives have cosponsored legislation, H.R. 3920, which, if passed, would allow Congress to overturn US Supreme Court decisions by a 2/3rds vote. The bill would only apply to"judgments[s]" that" concern an Act of Congress," and the procedures would be"the same as that used for considering whether or not to override a veto of legislation by the President." Presumably, since this requires a 2/3rds vote, it would be immune from Presidential veto. [My father sent along the link, along with that last conclusion.]
Is there anyone out there who doesn't see this as a clearly unconstitutional power grab? (OK, is there anyone out there with any sense.... never mind, self-limiting tautology) There's no way a procedure like this could possibly be constitutional without an outright amendment. Then there's the question of advisability..... NO! 'Nuff said.
[Extra Credit: what recent decisions of the US Supreme Court do you think Congress would have overturned under this standard? I think they're worried about the upcoming Pledge of Allegiance decision, myself.]
Not to veer too far from the topic but the question remains even today, whether we have gotten past “juries that acquitted demonstrably guilty white [and black} perpetrators.” The discriminatory divide in the court is not racial, but monetary.
It is a shame that the Warren court was so hard up to execute it’s political agenda when it adopted the “privacy” argument in Griswold. It then had to be used in the entire line of abortion cases. Now the public is stuck with the nonsensical farce as being law. Oh what tangled webs we weave……
It is as bad as the separation of church and state argument. It too is a constitutional fiction yet manufactured by the court through precedent it is often cited as a basis to prevent the free exercise of religion.
As mentioned earlier, judicial activism is when a court’s ruling is a result of political predisposition as opposed to strict interpretation of law. In a study of Supreme Court rulings that I did in 2002, using the famous dataset compiled by Segal and Spaeth for their study, The Attitudinal Model, I found that the Rehnquist court pretty much mirrored other courts regarding the number of conservative rulings it made vs. liberal rulings when compared with other conservative and liberal courts. There is one outlier that has already been mentioned-the Warren court.
andy mahan -
9/19/2006
I would love to see it happen. The U.S. Supreme Court is far more powerful than it was intended under article 3 of the Constitution. Chief Justice John Marshall absconded the power of judicial review in Marbury v. Madison. From that point forward the gutless legislature has permitted the court to expand its power, in disregard of the framers intent of the role of the Judiciary. Today the Supreme Court is such a political organ that it is merely a duplication of the legislature in miniature. Justices are not elected, and are not responsible. They have political agendas and are appointed to implement those agendas. They should not be permitted to dictate to the people. I suspect the reason that the legislature allowed the theft of its power was to remove its members from becoming entwined in unpopular issues that may negatively effect their reelection.
Abortion would still be a state issue (as it is) absent the activist court.
andy mahan -
9/19/2006
Interracial marriage is entirely different than abortion. There was a specific amendment under which Loving neatly fit-the 14TH.
I do not advocate the Justices look over their shoulders. Still, they can if they choose. What I advocate is that they do not have unchecked power of judicial review. It was not the court's purview under the framers (ref: art III). If the justices in ANY case are not resisting (with all their power) their political leanings in favor of interpretation they are not doing their job.
Somehow I find myself disagreeing that the Supreme Court is "really not that powerful." It is as powerful as any other branch. Much of its power is not legitimate but conceded by the other branches for whatever political motivations they might have had. Any power that is not given to the executive or legislature remains with the people not the Supreme Court.
"Activism", as used in reference to judges has a negative connotation. It means butting-in to an issue with political motivation. That is clearly against the canons of judicial conduct.
Just because 5 of 9 justices think something is socially or morally wrong does not permit them to usurp the system by prematurely outlawing it. The genius of the design of American government is the establishment of checks and balances. If the court prematurely decides an issue for the states, abrogating the states right to eventually come to the same view at some time in the future. That branch is stealing power from the people.
andy mahan -
9/19/2006
No doubt Richard, in both cases (Florida & New Jersey) the decisions were political and activist as well as unsupported by law. Stuff like that is the reason that citizens have less and less respect for the court as time passes.
I agree that the judicial review history is unclear (murky). That is much of the problem. Justification for assuming the power of judicial review is supported by a lot of “murky” verbiage and tangential connections. It’s like the right to privacy, manufactured from emanations and penumbras in the constitution, with no specific reference to the right. Later, that discovery supported the finding that anti-abortion laws were unconstitutional.
Marshall may have claimed that precedent “confirmed” judicial review, but that statement is merely an exercise in positive thinking. Of course he would want to contend that the U.S. Supreme Court always “had” the power of judicial review. But in practice he “established” the power of the court to rule on the constitutionality of law where it previously never had existed.
To me it is a long leap to contend that the power to rule on the constitutionality of law is suggested by the power of appellate jurisdiction. The court is charged to fill the role as the highest court to which one can appeal, not to decide whether or not the legislature’s work was done properly or not.
You are also right that the Supreme Court is the sole court with appellate power. This is another abrogation. All intermediate courts are unconstitutional. If the Supreme Court were to fill it’s appointed role it would not fragment the law, but would make it more uniform. One court-The U.S. Supreme Court should be deciding all appellate cases. This would alleviate all the multiple interpretation problems as generated by the 9th circuit for example.
I agree that if the bill in question were passed (and it won’t be) it need not be implemented often, but it’s existence alone would slow down the ever increasing “power grab” by the judiciary.
Richard Henry Morgan -
5/28/2004
The problem I see with that argument is that the premiss has little basis. The relationship of abortion to privacy is one of the worst-argued premisses in Con Law. In fact, it is so bad one might want to argue it wasn't so much argued as posited. I've seen some studies suggesting that support for abortion was higher before the court big-footed it with dubious arguments. So much for Brennan's view that the court should anticipate the evolution of public views, and ease their passage into law by reinterpretation (as he quite explicitly said in his death penalty dissents).
I would add that even Justice Ruth Bader Ginsburg thinks the privacy argument in abortion doesn't pass the laugh test. She would base it on the 14th amendment, which is not that much better. I distinctly remember Hodding Carter sheepishly admit that liberal views had prospered from a Supreme Court that was willing to grant goodies via reinterpretation that it couldn't gain at the ballot box.
BTW, there's a careful study by a flawlessly liberal law professor at UTexas, L. Powe, demonstrating that the Warren Court overturned precedent more than the entire rest of the history of the court combined. Brennan used to smile and hold up five fingers and say that it only took five fingers to make law. He didn't find that quite so funny when the Rehnquist Court reversed some of his own precedent-breaking decisions -- at that point he screamed about lack of respect for stare decisis, conveniently forgetting that he had crapped all over that concept for the greater part of his court tenure, and in fact had taken pride in it.
Now your point has some merit. One must put some flesh on the bone, or the charge is just pejorative. Let me admit this. The rehnquist Court decisions on state sovereign immunity seem equally activist.
Derek Charles Catsam -
5/27/2004
But no one here has defined what they mean by "activism" beyond, from what i can tell, "stuff the court has done that I do not like." Are courts being acrtivist merely by acting? Because whenever they interpret the Constitution, someone might accuse them of activism. Further, while abortion might be left to the states in Mr. Mahan's ideal world, those of us who see privacy as a fundamental right would not want that to happen. States do not have the right to violate constitutional rights. If this were the case, we'd never have gotten past separate drinking fountains and juries that acquitted demonstrably guilty white prerpetrators of crimes against blacks.
dc
Richard Henry Morgan -
5/27/2004
I both agree with you, Andy. I agree on the subject of activism. The recent judgments in election cases by both the Florida Supreme Court and the New Jersey Supreme Court amply display the ills of judicial activism.
The Florida Appeals Court judge, after the cases were over, quite properly said that an appeal to broad equitable powers was just a self-granting of license to ignore the law and rewrite it. The FSC goofed even on that -- they interposed a Florida Constitutional guarantee of suffrage in a case where the Federal Constitution supplies no such guarantee (in federal elections). Count on our huckleberry FSC to screw up a two-car parade.
In the New Jersey case, they made no attempt whatsoever to interpret the statutes as a whole, and drove a truck through a gap. in so doing, they created a precedent that will haunt them -- an open invitation to stealth candidates hopping in at the last minute. That invitation will be accepted at some point.
But judicial review has a murky history. Scholars contend whether judicial review was intended by the Framers. Certainly it had common law precedent -- witness Bayard v. Singleton, and other cases. Marshall relied on this when he said, in Marbury, that it confirms (rather than establishes) judicial review. Article III says the Supreme Court shall have "appellate jurisdiction, both as to law and fact" -- which suggests judicial review -- except where Congress denies it.
That suggests that the Framers understood the inherently undemocratic temptation of the Court to descend into fiat law. Now consider the implications. The power to deny appellate jurisdiction does not extend to inferior courts. The result would be conflicting law in each circuit or district, were appellate jurisdiction denied the SC. True, Congress could simply disestablish inferior courts as a way to prevent conflicting circuit opinions, but that cure is almost as bad (if not worse) than the disease.
Let's face it. Judges are as lacking in character when it comes to limiting their own exercise of power as any average Joe on the street. Maybe Congress just has to deny jurisdiction once or twice as a shot across the bow to pull judges back into line. But I doubt the effect would last. They are incorrigible. And as long as either party can gain through the judiciary what they can't gain through the ballot box, and as long as judges seek the approval of constituencies, incorrigible types will continue.
Oscar Chamberlain -
5/27/2004
As a constitutional amendment the proposal would be interesting. I would oppose it, but I don't think it would be the fountain of all evil. I am dubious about its constitutionality however. I don't think Congress's power to deny federal courts jurisdiction is relevant here, in part because it would be an ex post facto law of sorts, denying judicial redress to someone who has just obtained it.
However the power to deny jurisdiction could be used in some situations. After a controversial Supreme court decision that overturned a federal law, the Congress could reenact the law with a provision that denies jurisdiction.
However, a denial of jurisdiction is hard to craft narrowly. Therefore unintended consequences are virtually guaranteed, unless the Supreme Court interprets the ban narrowly (which would create its own problems). I suspect this sort of reasoning has kept Congress from using that power any more than it has.
Jonathan Dresner -
5/27/2004
You're not kidding. But under this reading, the House bill is not really all that plainly unconstitutional. That's why strict constructionists scare me.
Jonathan Dresner -
5/27/2004
So would anti-miscegenation laws.
There was a time when I would have disagreed about the political nature of justices, but this is a step towards more politicization -- Justices looking over their shoulders at Congress -- rather than less. The President appoints these people and Congress confirms them and then they are independent, but really not that powerful. Not the perfect system, but I'm still waiting for a better one.
It strikes me a plainly unconstitutional. There is, however, a way to end-run that problem. If the Act of Congress does not involve "ambassadors, other public ministers and consuls, and those in which a State shall be a party", then, by Article III, Section 2, by a simple majority vote of Congress, Congress can deny the Supreme Court appellate jurisdiction, both as to law and fact. Where there's a will, there's a lawyer. Of course, that would create a real mess ...
Derek Charles Catsam -
5/26/2004
Ralph is, I think, right. Unless they somehow passed this as an amendment, which I cannot see happening, though I could see 38 states feeling public pressure to do so. In any case, I have always argued that the judicial branch is at its best when it is above simple popular opinion. It's hard to protect the rights of the minority when the majority can pull the rug out from under you. Protecting Constitutional rights that are unpopular is far more important than defending the rights that defend themselves through the support for them. All we need is for some grandstanding group of legislators to realize that rights of the accused aree never popular. You want to open the door to the jackboots kicking down your door, I'd say having Congressional override of unpopular judicial acts would be a good start. Plus, isn't activism in the eye of the beholder? Conservatives were traditionally the ones to decry activism, and yet now that we arguably face some of the most "activist" (scare quotes to indicate that I am wary of this term and its meaning) judges ever to sit on the court, and they are conservative, judicial "activism" seems to mean "a decision with which I disagree." Hardly the stuff of legal doctrine.
dc
Ralph E. Luker -
5/26/2004
No circularity. The Court is final authority on what is and what is not constitutional and it isn't about to cede any of that authority to the Congress.
Jonathan Dresner -
5/26/2004
But then Congress could override? No.... I don't think so.
There's a circularity here that's very disconcerting.
Ralph E. Luker -
5/26/2004
I think you're right about this, but I also think that if such legislation were to pass the Congress and win a presidential signature that the Supreme Court would find it unconstitutional in a heartbeat.
