Not content with circumventing the First Amendment or seeking to subvert the Second, a recent hit piece in the
La Guardiana makes clear that the Demorats are out to turn the Supreme Court into a lackey of the Executive.
The shot across the bow: "There is no better symbol of the crisis of trust in American institutions than its highest court, pummeled by partisan appointments, divisive rulings and ethical scandals."
Say what? Since when have appointments to the Supreme Court not been partisan?
Since when have Supreme Court rulings not been divisive? It is in the nature of things legal that there will invariably be two sides in any case and the side that looses will be grumpy about it. When the case is of public interest, the public will be divided on the issue. This is new?
The
Guardian article then positions itself for a broadside:
"Congressional Democrats ... believe that they have a solution: expand the court by adding four seats to counter a rightward tilt during the Donald Trump administration that, they say, put it out of step with mainstream public opinion."
This is nothing less than a call for insurrection against the Constitution. Permit me to explain why.
The Constitution does not prescribe any number of justices to sit on the Court and, originally, the number was set at seven. So then, there is nothing unconstitutional in seeking to increase the number of justices on the Court.
Furthermore, since the Constitution gives Congress the power to create such inferior courts as it deems fit, there is no bar to creating "sub-supreme" courts to respectively handle criminal or civil matters, leaving only the most rare and rarified cases for Supreme Court review. If it wanted, Congress could imitate a College of Lords model and provide that the Supreme Court be comprised by all Circuit Court judges assembled.
What makes the Demorat proposal insurrectionist is not the plan but the motive; namely,
to bring the Court in step with mainstream public opinion.
That is definitely not what the Supreme Court is about. It is nothing the Court
can be about. In our system, public opinion (la volonté général) expresses itself throught Congress not the courts. In contrast "it is emphatically the role of the courts to say what the law is." (
Marbury v. Madison, Marshall,J.) Or, as Hamilton put it,
“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. ...
“[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. ...
“[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that 'there is no liberty, if the power of judging be not separated from the legislative and executive powers.'' ... [L]iberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments...” (Federalist Paper No. 78.)
This means nothing to the Democrat Party or its hacks in the press. To speak of countering a "rightward tilt" during an Administration is to insinuate that the Court is nothing but an instrument of the executive; that it is a mere creature of political will that can and should reflect a dominant ideology by packing it with partisans who will toe the line. Broadside indeed!
Yes, the proposed means is constitutional but the aim and purpose is to destroy the independence of the judiciary; to make it as subservient to the Biden Administration as the Stuart judges were to James II.
For shame!
Cynics on both sides of the factional divide will say that the Court has always been "political" and that the notion of an a-political “interpretation” of the law is a fiction. I agree. But what the cynics omit is that there are different types of "politics."
Hamilton states that courts must exercise
judgement and not
will. But what does this mean? We can begin an answer by asking, what is "the law" if not a pile of words? After all, it is language, Aristotle says, that allows us to "decide between the just and the unjust, the expedient and inexpedient." (
Politics, Bk.1, ch. 1.) And so deciding, what we call “law” is simply a prescription for the conduct of persons and the operation of institutions. Thus, the role judgement boils down to declaring the sense of words, in relation to themselves and in relation to yet other words which are used to describe what we call “reality.”
No one can seriously argue that making enforceable decisions about public or private controversies does not have a corresponding political implication. The entire course of Anglo-American law is infused with politics; and it is in the genius of our system that it extracts a universal principle from a particular case and that the wrangling between two parties can have implications for the nation.
Of course the courts are political institutions. But the "politics" of the courts is the politics of grammar whereas the politics of the legislature is the politics of number.
As Hamilton reviews in Federalist Paper No. 78, this political grammar operates at two levels, the lowest being ordinary statutory construction and the resolution of conflicts between two or more statutes. The next higher level involves judging the constitutionality of statutes and official acts or the interpretation of two or more conflicting constitutional provisions.
But in my view, there is yet a broader and deeper level at which the high court operates; namely, the historical assessment of our custom and usage -- how we, as a People, have been talking about things. Or, what is the grammar of our tradition?
The first two levels of judicial judgement are basically textual. A
sola scriptura sort of thing where will is harnessed by the “plain meaning of words.” The third level is hinged to the textual but stretches into the finesse of our legal and political tradition.
At all levels there is a danger that judges will depart from exercising judgement and pass over into exercising will. The danger is greatest when the matter at hand devolves into "history and tradition." The reason is simple. Supposing for the sake of argument that a history or tradition is ascertainable with a reasonable degree of certainty, that being the case tradition only brings us up to the present. The question still remains which way the law points with respect to the future. Whither the next step, if even a step at all?
There are two possibilities: progression or stasis. The text in light of history and tradition either calls for a development or mandates constraint. This choice lies at the base of the argument over "activist" versus "conservative" justices. Neither is inherently better than the other. The whole history of the Common Law is one of development by analogy. At the same time, throughout that history, there are times when the brakes are applied in the name of received custom. At times, the pen writes in both directions. The American Revolution, which was steeped in legalisms, indubitably pointed forward while being grounded in an asserted vindication of long established rights.
This is not the civilian system in which justice is regarded as merely administrative. In our tradition, judges are not meant to be robots. It is understood that they bring to the bench a
woolsack of ideas and notions on which they sit. What distinguishes their decisions from a mere exercise of will is a commitment to be led and restrained by the meaning and trajectory of words. In Congress there are no limits as to what can be proposed. In courts of law there are limits as to what can fairly and reasonably be deduced.
It is here that a further distinction between “liberal activism” and “conservative interpretation” arises; namely, what is “fair and reasonable.” Until, the end of the 19th century the name of the game was legal formalism. What this meant is that any
ratio decidendi had had to abide basic canons of deductive reasoning.
"All wrong, all wrong — but no one can say why..." said governor John Randolph of
Marbury v. Madison, the cornerstone of the Court's judicial power. And so the case has stood.
At the end of the 19th century there arose a sociological movement in the law which aimed to investigate and understand the social and economic causes out of which the law grew and which it was said to reflect. There was nothing especially egregious in this sort of exercise. Indeed the meaning of words themselves are socially contextual. But this “new jurisprudence” quickly got inverted into using law to effect social and economic outcomes. Throughout the 20th century law students were taught that “law is a tool of social engineering.” The game of this new “legal realism” was to select a desired outcome and then rustle up the rationale needed to make it fly. It was immediately apparent to any first year law student that this methodology reduced law to an exercise in advertising. What mattered only was that an appearance of law be lent to bringing about a result.
The culmination of
outcome-determinism came in 1942 in a case called
Wickard v. Filburn. In that case, the question was whether an isolated, backwoods farmer who grew a few acres of wheat entirely and exclusively for his own consumption was “within interstate commerce” and therefore subject to federally imposed limits on wheat production. The answer was yes, because by being outside interstate commerce he affected the level of interstate commerce as much as if he had sold his wheat in interstate commerce and therefore by being out of interstate commerce he was “in” interstate commerce and subject to federal regulation. At this point rhetoric spilled over into sophistry of the most grotesque sort. FDR's newly constituted Court had declared that words would be used to decide what was
expedient and that decisional law was an exercise of will.
Nor was
Wickard a particularly exceptional case. To give an apropos example, in
Kelo v. City of New London, 545 U.S. 469 (2005), the “liberals” on the Court headed by Justice Stevens held that the power of eminent domain allowed government to take one man's private property in order to sell it to private developers. Prior to
Kelo, the rule was that property could be taken but only for “public use.” After
Kelo that was still the rule only “public use” was redefined to include the general promotion of economic development, including creating new jobs and increasing tax revenues along with “other exercises in urban planning and development.”
A more perfect example of the alliance between “the state and corporate power” (quoth) could hardly be imagined. Had Justice Thomas written the opinion, the pages of
La Guardiana and the
New York Slime would be overflowing with outrage at his cozy and corrupt relationship with billionaires. Well what
did Justice Thomas write in his dissent?
“... extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.”
While one may perhaps sympathise with Thomas' more "populist" perspective, it was as much an expedient argument as that of majority. The matter was far simpler: the Fifth Amendment refers to taking property for "public
use;" it does not refer to taking property for a "public
benefit."
Another example of grotesque outcome determination was
National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), which upheld Obamacare's insurance mandate. The difficulty was that the Constitution does not allow the federal government to force anyone to enter into a private contract. Justice Roberts avoided this inconvenience by ruling that the Constitution allows the government to levy taxes and the "mandate" was simply a non-tax tax. Liberals cheered!
The law could not survive without a degree of sophistry, and the best one can say is that there are simply limits.
The dichotomy between “liberal activism” and “conservative interpretation” is overdrawn to the point of triviality and demagoguery. The question is more aptly phrased in terms of a judge's resort to outcome determination; or, in Hamilton's terms by asking whether the outcome was the result of judgement or of will.
So-called conservative rulings tend to resort to legal formalism for the simple reason that our Liberal constitution imposes limits on government action. As such, constitutionalism becomes mostly a question of negation. When Justice McReynolds voted to strike the first Social Security law he stated "I can not find any authority in the Constitution for making the Federal Government the chief almoner of the nation," one has to admit that he was right.
With so called liberal rulings, the case is just the reverse. While any jurist can push the limits of what words will fairly bear, typically it is the so-called “liberals” who resort to outcome-determination because they are using the law to “engineer” a result. But in doing so they think and act exactly as legislature: they cite data and sociological studies; they “balance interests” and, after rustling up some nice sounding verbiage from somewhere, propose a solution.
This was precisely the problem with
Roe v. Wade. As an act of legislation it made perfect sense in that the scheme it established was a reasonable choice among several. But it was simply not the sort of thing a court should be doing. It was within the compass of legitimacy to deduce an implicit “right of privacy” from the Constitution. Had the Court struck the Texas law as going too far, such a holding would have been completely unremarkable. But the Court did not so content itself.
The fundamental tenet of "legal realism," "sociological jurisprudence" or "outcome-determination" was candidly distilled by Justice Breyer in his dissent in
New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022)
“In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms.”
In my view, Justice Breyer's opinion is untenable; it is destructive of the very concept of law. What he was saying, in effect, is that the law will mean what
he wants it to mean.
Bryer's dictum ought to give us serious pause. In 1934, an influential German legal scholar postulated,
“We do not determine what National Socialism is according to a pre-existing concept of the constitutional state, but rather the reverse; the constitutional state is determined according to National Socialism. ... Every interpretation must be an interpretation according to [the demads of] National Socialism.” (Carl Schmidt, “Nationalsocialismus under Rechstaat,” Juristiche Wochenschaft 63 (1934), pp. 713, 716; cited in Ingo Müller, Hitler's Justice, Harvard University Press, (1991), p. 71.)
I have no interest in bandying about cheap and outrageous insults and to be very clear, Justice Bryer was not a "fascist" or "Nazi." But it is not amiss to point that, in terms of jurisprudential method, Breyer and Smith's approaches are too close for comfort. In either case where there is will words will follow rather than words implicating a judgement. That's great when you get what you want, but suppose the shoe is on the other foot, to what "law" will you appeal then?
Despite being excoriated by the New York Times' peanut gallery, Justice Scalia was entirely correct to ask whether we wanted, or can even tolerate, nine unelected judges acting as a super-legislature. The intolerable Democrat answer is that we can so long as the result is tolerable to us. In other words, to “judgement” and “will” we can now add “petulance.”
And it is precisely this petulance that drives a cabal of Demorat congressoids -- including Senators Ed Markey, Tina Smith and Elizabeth Warren, Jerrold Nadler, Cori Bush and Adam Schiff -- to announce the reintroduction of legislation that would create a 13-justice bench.
What is galling in all of this is that it is the utter bankruptcy of Congress which is the impetus for institutionally destroying the Court. It is hardly a secret that the Court has resorted to “judicial activism” precisely when Congress has been deadlocked by its own divisions and archaic procedures. Instead of blaming the Court the liberal congressional cabal would be better advised to look itself in the mirror.
If the abortion and gun control activists (for that is what it currently boils down to) succeed in their packing scheme, they will not only have undermined the Court as a court, they will have trashed the law itself making it as meaningless and vapid as steamy hortatory that vents from congressional mouths.
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