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Thesis & Antithesis

A critical perspective on energy, international politics & current affairs

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Location: Washington, D.C.

greekdefaultwatch@gmail.com Natural gas consultant by day, blogger on the Greek economy by night. Trained as an economist and political scientist. I believe in common sense and in data, and my aim is to offer insight written in language that is clear and convincing.

05 September 2005

Supreme crisis

The death of Chief Justice William Rehnquist will inevitably inflame public debate about the Supreme Court. But while the media’s attention will focus on the personal beliefs of the candidates to replace him (as it has done with John Roberts, potential replacement for Sandra Day O’Connor), a broader question is unlikely to receive as much airtime as it deserves: does the institution of the Supreme Court work well?

There are reasons to think that it does not. The Supreme Court has two functions: first, to balance between the constitution and the laws, and hence check the power of legislatures to pass laws that could threaten enduring values of the American character or undermine the functioning of the American federal system; second, it is supposed to “decide cases,” as Justice Byron White succinctly described the Court’s purpose in 1962 (1).

But while the Court has two political functions, its modus operandi is one: deciding cases. “Courts are supposed to resolve cases, not make broader policy, which is exactly what happens when they decide more than the question a case presents,” writes Mr. Wittes, explaining the complaint of Laurence Silberman, of the DC Circuit Court of Appeals (1). It seems clear from the furor about Supreme Court appointees that the public perceives justices as policy-makers and not umpires between two competing legal adversaries.

What is more, the justices seem less and less inclined to follow precedent. A study by James Fowler, of the University of California at Davis, shows how the Rehnquist Court has reached new lows in citing precedent, “reaching an average of a mere five citations by 2002” (2). This is evidence that the Court perceives its own role to be less the custodian of sacred principle than the maker of public policy.

All the same, the Court is ill equipped to be a policy-maker. For one, the justices are unelected by the public; what is worse, they have no external restraint (save Constitutional Amendments which are rare and cumbersome). The only way to change the Court’s mind is to change the Court itself; but “longer life spans and justices’ increasing reluctance to retire have raised their average tenure from fifteen years before 1970 to twenty-five years since then” (3).

To this should be added another problem, noted by Stuart Taylor Jr. in The Atlantic Monthly: the distance that the justices have from the real world. “Debates over the Court’s ‘balance’—ideological, ethnic, gender—will doubtless heat up as Congress considers the current vacancy [O’Connor’s]. Yet there is likely to be little discussion about the greatest imbalance—the one in the collective real-world experience of its justices” (3). It is this imbalance, Mr. Taylor believes, that leads the Court to rule without due regard to the practical application of its decision on the day-to-day running of lower courts or business.

Take a step back, then, and the picture that emerges is clear: the Supreme Court has too much power and too little check, hardly the ideal for a system built on checks and balances. The most sensible reaction to the current crisis is to make the Court more flexible and hence make it likelier to meet its equilibrium position where it can serve both its political function and its primary obligation to “decide cases.” And there is no greater way to achieve this by placing a limit on the justices’ tenure and hence bring about a continuous infusion of new ideas on the bench.

(1) Benjamin Wittes, “Without Precedent,” The Atlantic Monthly, September 2005
(2) “The wisdom of Hercules,” The Economist, 27 August 2005
(3) Stuart Taylor Jr., “Remote Control,” The Atlantic Monthly, September 2005


Anonymous Peter said...

Well. One of the greatest irregularities it seems to me is that you cannot control when a vacancy occurs, or how many people get to be appointed by a certain President. Why is it fair for Ford to name a justice and not Carter, when Carter served longer as President? Why is it fair that Clinton gets to name two, and Bush might get to name, say, five? The balance of ideology-leaned justices seems to be largely determined by supernatural fate.

But, as Roberts himself brought up during his hearings, it would be alarming to have term limits on judges. After all, all a disaffected party needs to do is hold off their case (or have it re-tried) once a sympathic judge or justice takes the seat on the bench. And they know exactly when this would occur, due to term limits.

That said, what do you do with judges that are obviously biased, and allowed to turn that bias into decisions. Nobody disagrees that judges need to publish fair-minded, intelligent decisions that weigh facts as they are presented in the case. But inevitably, the mind of the individual judge will think some reasons presented STRONGLY carry the day even against overwhelming evidence from the other side. [Think judges in debate rounds from college. Not the novice judges, who try hard but are incompetant because they're not used to the system. I mean the experienced debater/judges, who are ready to explode into fiery bits of joy or miasma should a debater use a particular word or slogan in his defense. "It has to do with globalization!" (Bang, bang! Excellent point.)] This is because of a viewpoint already fostered in the judge's mind of what is important, and what is not.

So what do you do in that scenario. The Consitution sets up an elegant system of nomination and confirmation, though unlike a Constitutional amendment, an appointment only requires a mere majority from the Senate. We'd like to have impartial judges, who truly do want to have all the facts and reprecussions of their decisions weighed in the light of how they will affect society (and, more importantly, if it is proper they should decide something or should the legislature). We'd like to avoid society-impacting decisions like Bush v. Gore, where Supreme Court justices voted squarely on who they voted for in the booth, with minimal explanation.

People are human. How do you set up a system where the super-human philosopher kings sit on the bench, restrained from tyranny by the binds that they cannot originate law, but disciplined, courageous, and intelligent enough where they can always seek to apply the law to the highest balance of good?

1:47 AM  

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