Wednesday, November 03, 2004

Separation of powers?

There are a number of bills before Congress that have attempted to limit the Supreme Court's jurisdiction, such as the Constitution Restoration Act of 2004 and the Pledge Protection Act of 2004 (think "Allegiance"). The Congressional Accountability for Judicial Activism Act of 2004 goes a step further in allowing Congress to overturn a decision by the Supremes. What I don't understand is how Congress has the authority to limit the powers of the Supreme Court, short an explicit Constitutional amendment. Would anyone with some SCOTUS knowledge (Justin?) like to comment?


Blogger Justin said...

Holy constitutional crisis Batman... That's a scary act.

Going back to early American history, the Constitution and the founders never envisioned that the Supreme Court would be able to overrule an act of Congress. In 1803, Chief Justice John Marshall decided Marbury v. Madison, establishing the principle of judicial review, allowing the court to strike down acts of other branches as unconstitutional.

It's basically by 200 years of common consent that the people have validated the right of the SCOTUS to strike down acts of Congress. If the country decided tomorrow that the courts shouldn't be the final arbiter of what is constitutional, that power isn't enshrined in the Constitution. If Congress decided that the power of the SCOTUS should be curtailed, and the SCOTUS disagreed, we'd have a pretty hefty power struggle on our hands. The executive (which has all the guns) would have to decide whose edicts to follow...

11/03/2004 11:15:00 PM  
Blogger Mwal said...

The Federalist Papers actually address the question of judicial review, which seems to have been pretty controversial, albeit theoretical at that time.

Hamilton, writing as Publius, says in Federalist 78 that judicial review (as practiced today) is implied by any limited constitution:

"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the 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. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

In Federalist No. 81, he addresses criticism of the idea of judicial review and its application to the proposed Constitution:

"The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body."

"The arguments, or rather suggestions, upon which this charge is founded, are to this effect: 'The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judical power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.' This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact."

"In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion."

[In the second point he basically argues that ultimate authority over Constitutional questions is essentially a judicial power no matter where you put it, and thus belongs more in the Supreme Court than in the Senate.]

Of course this is all just Hamilton's opinion, so you can take it or leave it as you will.

11/04/2004 05:52:00 AM  
Blogger Eric said...

IMHO: The first two seem like a silly way to waste politcan capital. The latter would definitely be a substantial change to the law, but I'd advise being careful what you wish for.

Seems to me that the Supreme court would just declare any of these three beyond the power of congress. I can't think of any good way for the executive branch to take a stand against such a ruling similar to some of the stands back in the civil rights hay day. So I presume the federal executive branch would just sit by. Perhaps the ammenments' supporters could try to make it an ammendment, but they would probably fail.

Justin: I seem to remember from HS studies of civil rights days that the Supreme Court had some martials (with guns) that they could use to enforce their decisions. Obviously, not as many guns as the commander-in-chief, though.

11/04/2004 10:33:00 PM  
Blogger Eric said...

This comment has been removed by a blog administrator.

11/04/2004 11:31:00 PM  
Blogger Mwal said...

Apparently, some of the New Dealers bounced around almost exactly the same schemes, as well as a few others.

Robert E. Cushman provides some analysis in this 1936 pamphlet.He considers proposals to: remove SCOTUS's jurisdiction for some cases; allow Congress to override decisions by a 2/3 vote; prevent 5-4 decisions from deciding constitutionality; pack the court; and to eliminate judicial review altogether (whether by a Constitutional amendment or a mere Act of Congress).

I doubted the constitutionality of most of these ideas, except of course for packing the court. But Cushman brings up an interesting precedent, the case Ex Parte McCardle, in which Congress (successfully) withdrew appellate jurisdiction from the Supreme Court.

11/05/2004 12:22:00 AM  
Blogger Mwal said...

(p.s. Whether the ideas are constitutional or not, I personally think they're pretty dumb. It's good that they have no significant support in Congress.)

11/05/2004 12:40:00 AM  
Blogger Eric said...

But in the McCardle case, Congress withdrew jurisdiction that Congress had given. If you beleive SCOTUS's judicial review is constitutionally based, then that's a different matter.

If 5-4 cases were not binding, then would lower courts be free to do whatever they like, but then the losers would keep bringing similar cases before SCOTUS? That doesn't seem to make much sense.

Any why bother? I thought SCOTUS had already set a precident for reversing itself as the times/public views change.

11/05/2004 02:12:00 AM  
Blogger Mwal said...

In the usual interpetation, judicial review is not a power granted by the constitution. It is the natural ability of any court when deciding a case. To decide a case requires the court to interpret the meaning of law. If the court finds that laws are in conflict, it must decide which law wins. Since the constitution is itself a law, and the only source for federal authority, in a conflict it always wins.

But if the federal judiciary is not allowed to hear a case in the first place because it lacks jurisdiction (e.g. McCardle), then there's not really any opportunity for the judiciary to decide whether a law conflicts with the constitution or not.

This is what the 'pledge protection act' would aim to do. There is only a small amount of jurisdiction ('original jurisdiction') directly given to SCOTUS by the Constitution. The rest is the appellate jurisdiction which is granted by Act of Congress. So what Congress gives, it can also take away.

I don't really understand how the 5-4 scheme was supposed to work wrt. lower courts. I get the feeling that most of the people behind these ideas, then and now, were acting in the heat of the moment. So they're not necessary coherent plans for reform.

In the 1930s, FDR and the Democratic Congress (elected with quite a dramatic mandate) drew up several very complicated and far-reaching acts meant to remake the government. Many of them were found unconstitutional by SCOTUS, often in 5-4 decisions. This had to be frustrating. To the New Deal's supporters, the work of months and the will of the people was being thwarted time and again by a few unelected old men.

A wonderful anecdote (which you've probably all heard) is that, when FDR threatened to "pack" the Court with friendly justices by increasing its size from 9 to 15, one of the justices quickly became much more sympathetic to the New Deal. And so it was said that "a switch in time saved nine."

11/05/2004 03:54:00 AM  

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