Monday, November 26, 2018

Ideology, Partisanship, and the Wrong Questions

By Eric Segall

Last week the President of the United States once again accused federal judges of being partisan, and the Chief Justice of the United States responded by stressing the need for an independent judiciary. This exchange prompted legal scholars throughout the land to take numerous positions on the role of ideology and partisanship in judicial decisions, focusing mostly on our highest Court (even though Trump was referring to a district court judge). Most agreed that the Court should try hard not to be partisan or ideological but also stressed that, given the nature of the cases the Court hears, the open spaces of constitutional interpretation, and our overly politicized confirmation process, these are noble aspirations more often violated than achieved. I argue below that, when it comes to the Supreme Court, everyone is asking the wrong questions.

Today our highest Court is staffed with five Republicans, all of whom are substantially more conservative than the four Democrats. This polarized state of affairs, an historical aberration, may well portend the future. But it is unlikely that this political divide will define the Court across all areas of constitutional law. First, Chief Justice Roberts may well move to the center to avoid the appearance of the Court being a purely partisan political institution, as many think he did when he voted to upheld the Affordable Care Act. Second, on issues of criminal procedure, statutory interpretation, and perhaps judicial aggression against federal economic regulation, the Court may not divide along partisan lines. Only time will tell.

While the Court has not traditionally been divided along Republican/Conservative versus Democratic/Liberal lines, nor along easily definable ideological lines, it has always been true that the Court's reliance on text and history to make its decisions has been minimal at best. The truly important  questions concerning the Court, that will exist no matter its political or ideological makeup, are whether the Court takes prior law seriously enough to distinguish it from an institution that makes all things considered decisions, and whether this hybrid legal-political institution should wield the power and influence that it does over so many issues central to how we define ourselves as a country.

Over the last 100 years, the Court has imposed its will on a huge number of difficult policy decisions even where text and history did not obviously call for the Court to overrule more accountable governmental officials. The Court at one time or another has invalidated laws pertaining to minimum wages, overtime rules, child labor, school segregation, abortion, affirmative action, campaign finance reform, gay rights/same-sex marriage, how states carve up voting districts, pure commercial speech, aid to religious schools, religious symbols on government property, speech rules in schools and government offices, and on and on and on. Reasonable people can disagree over whether most of the laws the Court struck down were unconstitutional absent a presumption of validity. But that assumes the Court should be second guessing policy judgments even where reasonable people can disagree over their validity. That system of judicial review is not what the framers intended, and is a highly questionable way to run a country.

If you follow this blog, you know my opinion on what role prior positive law plays in Supreme Court decisions--almost none. If I'm right, then most of the traditional reasons we allow judges to overturn laws can't support our current practice. Most people assume that we have judicial review because the Constitution limits what elected officials are allowed to do and if they exceed those limits, then the Court should step in. The premise of that argument is that the Constitution sets forth binding rules of law that judges can reasonably enforce in addition to precedent being a constraint on judicial-decision-making. But, as I've argued many times before, if the Constitution's text (the parts that get litigated) is too vague to count as law in the normal sense, and if the Court is not bound by precedent (it isn't), then what the Court is doing isn't interpreting law. If the Court isn't interpreting law, then why would we give these unelected, life-tenured judges so much power over us?

Now, maybe I'm wrong. Perhaps, the Court is law-like enough to justify its substantial intrusion into the many areas of social, political, economic, and educational policy listed above. But that argument needs to be made, not assumed. The real issue is not whether the Court is too partisan or too ideological but whether it is a court of law at all. One thing is certain: there is no institution in the world like our Supreme Court. The Justices have life tenure, they pick their own cases, they regularly interpret hopelessly vague text with contested histories from either 1787 or 1868, and they have a long tradition of striking down laws even when reasonable people can disagree over their validity.

Judicial review makes sense in a world where the Justices only invalidate legislation when there is clear error or in Hamilton's words in Federalist No. 78 an "irreconcilable variance" between a law and the Constitution, But that limit on judicial power does not accurately describe the current job description of the Supreme Court. The examples listed above, and the many, many changes in constitutional doctrine over the years depending on who sits on the Court, suggests that something other than text, history and precedent generates the Court's decisions. Whether that something else is partisanship, ideology broadly defined, morality, or other normative commitments doesn't matter if that something else is not law.

There are other chief executives and legislatures throughout the world similar to our own, but there are no other courts like the Supreme Court of the United States. Maybe it is time to start from ground zero and re-examine why we allow these "Justices" to exercise so much power over our daily lives.


Michael C. Dorf said...

Eric: In this and other writing, you make what I regard as a curious argument. You say that no other constitutional democracy in the world has a Supreme Court like ours. That's true, but mostly with respect to institutional arrangements rather than substantive decision making. In many other constitutional democracies, just as in the US, courts rely on vague text in their national constitutions or in international human rights documents to invalidate policies chosen by elected officials. In 1975, the Constitutional Court of what was then West Germany construed "dignity" to require the prohibition of most abortions. The South African Constitutional Court invalidated the death penalty. It also found a right to same-sex marriage, as did constitutional courts in Austria and Taiwan. In general, for the last 70 years, constitutional courts around the globe have exercised judicial review in roughly the same way as the SCOTUS has.

You are right that the courts in these other countries have different institutional constraints. In none do the judges have life tenure. In some constitutional democracies (such as Canada and the UK under the Human rights Act), a judgment of unconstitutionality can be overruled more easily than in the US, and in all other countries, the constitution is easier to amend as a practical matter.

So we see that the US is an outlier in its institutional arrangements but NOT in its substantive jurisprudence. And yet you consistently criticize the US Supreme Court's substantive jurisprudence by saying that it is an outlier. That is practically a non sequitur. It seems that your real objection--insofar as you are invoking international comparisons--should be to the extreme insulation of SCOTUS decisions from political checks, not to the substantive jurisprudence.

Now, you might say that it's the combination of the substantive jurisprudence with the institutional outlier status that makes the SCOTUS problematic. That's fair enough, but in that case you should at least expressly acknowledge that the substantive jurisprudence in the US is well within the norm internationally. And you should explain why you're objecting to the substantive jurisprudence rather than to the institutions.

Eric Segall said...

Mike, my arguments about SCOTUS to a certain extent have a perfect storm quality and you only addressed a few in your message. In no other country does the highest Court play as strong a role across the spectrum of legal, social, economic, and political issues as does ours (see last sentence below). Also many other countries have specialized constitutional courts where the judges are really not thought of as doing law. As you recognize, and it is no small thing, none have life tenure, and in some judicial review is not as final as in our country. I also don't believe there are many countries that go through the political farce confirmation process that we do. Some countries have some of those aspects but none has all of them. Also, to the best of my knowledge, few if any other countries pretend originalism is a substantial factor in court decisions (Kagan: "we are all originalists"). Maybe most importantly, you choose a few hot button issues to focus on for your substantive jurisprudence point, but the paragraph in my post listing all the laws (just a small sample really) that our Court has struck down cannot, I think, be realistically compared to other countries, though happpy to be proven wrong on that if someone wants to try.

Michael C. Dorf said...

I guess a better way to put my objection would be that it's not clear which of the aspects of US judicial review, if any, you find independently objectionable. Would it be okay if the justices invalidated only abortion and campaign finance laws? Would it be okay if they did just what they do now on the merits but served for 18-year terms? I regard you as a Thayerian. Would you be a Thayerian in Canada with its notwithstanding clause? In Germany? The idea that it's a "perfect storm" makes it easy to know what you're against but hard to know what you favor.

Joe said...

Yes. For instance, does Footnote Four type claims matter. Gadflies however might not be the ones for compromise proposals.

Eric Segall said...

I favor ending term limits, stricter recusal disclosure rules, televising the Court, and most of all, restructuring how we think about constitutional law so the Justices wouldn't strike down laws absent an "irreconcilable variance" between the law and the Constitution's text and/or universally accepted historical meaning (prior restraints). As far as precedent goes, I would reverse most cases absent a strong showing of reliance. We could start by returning abortion, affirmative action, gun control, limits on campaign spending (not campaign speech necessarily), anti-commandeering, most commercial speech issues, religious symbol cases, and the upcoming anti-regulatory nightmare (Janus like cases) to the voters among many others. I admit I don't have easy answers to hard separation of powers cases. Some one is going to ask about Brown and Obergefell, and as I have explained before, public school segregation with all the attendant negative consequences, including school security issues and inferior job and university preparation, is a literal violation of the 14th Amendment as are bans on same-sex marriage given the monetary and other penalties that come with marriage bans. I would admit I would give back the last two for Dred Scott, the Civil Rights Cases, Lochner plus 200, the broad holding of Citizen United, Shelby County, Janus, etc. Nothing I said applies to most issues under the 4th through 8th Amendments as judges should rule courtrooms.....Most of defamation law should also be returned to the states.

Eric Segall said...

Whoops first sentence should be I favor term limits....sorry.

Joe said...

So other nations' courts that do not trust the voters on those issues are wrong too but the situation is somewhat less bad? Denying wonen the choice to have an abortion especially with all the consequences and details violate multiple provisions especially equal protection. Etc.

Shag from Brookline said...

Eric's comment at 5:15 PM closes with this: "Most of defamation law should also be returned to the states." Including NYTimes v. Sullivan?
If commenters focused on specific cases over the past 100 years, this could be a long thread. This post calls for careful rereading to identify cases that were wrong. It's difficult imagining what America might look like it Eric had his way.

I have yet to digest Justice Stevens' NYTimes interview that includes why and when he decided to retire, and his issues with the Court. Also, Ross Douthat's recent NYTimes column that I commented on in the preceding thread (on Mike's Primus post) pointing to Trump v. Roberts as a clash of Emperors with Congress as the weakest branch has been unsettling, and Eric may agree with Douthat.

Anyway, I'll give it a fresh start tomorrow.

Greg said...

It seems like many of Eric's worst concerns of excess could be resolved by simply requiring a super-majority (or even unanimity) to rule a law unconstitutional. In all but the most egregiously partisan courts this would result in far fewer laws being ruled unconstitutional. Term limits would probably resolve the issue of the court becoming too partisan for even this to be sufficient.

As long as the court requires a simple majority to overturn laws, the constitution will often be defined by whatever party holds 5 of the 9 seats, regardless of other institutional safeguards people attempt to add around the court.

Shag from Brookline said...

Query: How might a second constitutional convention address Article III on the points raised by Eric? Or are the nomination/confirmation processes the problem? Yes, the Court has long been politicized. Consider currently Heritage's resumed program for training SCOTUS clerks, presumably conservatively. Are clerks that effective in influencing a Justice? If so, clerks might be part of the problem, as they are unelected and do not go through the nomination/confirmation processes by the elective branches as do the Justices. Perhaps Heritage's views on its program are overblown, as are many of its other views. Term limits for Justices may be the simplest method to improve SCOTUS rather than introducing tyranny of the minority within SCOTUS.

Eric Segall said...

I agree with Greg about a super-majority requirement though I still think my 4-4 evenly divided Court proposal would be the most effective. Such a change would require bi-partisan agreement every time the Court strikes down a law, would lead to more moderate judges, and relieve the political pressure of the confirmation process. In my detailed proposal in the Pepperdine symposium on structural reform of the Court, I included safeguards to guard against stealth liberals/conservatives and also a way for an independent to get on the Court.

As far as Shag's first question, America would look much better in my opinion because the Court over time has been a huge obstacle to progressive reforms but alas that is the subject for another post and not the main reason for my proposals anyway.