Sunday, June 28, 2015

The Ultimate Manifesto, Part 1: “Judicial Restraint”

     We heard rather a lot from John Roberts, during his confirmation hearings, about the importance of judicial restraint. It’s one of the shibboleth phrases of the Right, to which obeisance is paid but seldom is more than lip service given. Just this past week, Jeb Bush, now a candidate for the Republican presidential nod, echoed the phrase when he was asked about how he would select federal judges were he elected.

     So what do these worthies think it means? Not the dictionary meaning, mind you, but the meaning its most conspicuous users put to it by their actions.

     One interpretation of the phrase is found in the judicial doctrine of stare decisis. That’s rough Latin for let the decision stand. Its black-robed users mean by it We defer to earlier decisions of this body, feeling it would be wrong to overturn them. Wrong why? Sometimes there is no reason other than stare decisis itself: the unwillingness to overrule an earlier decision, sometimes because subsequent law and government action might have been founded on it, sometimes out of an unarticulated fear that it might somehow reduce the authority of the Supreme Court.

     Viewed thus, judicial restraint protects tyranny quite as well as anything else.

     The role of the Supreme Court as stated in the Constitution seems relatively simple and straightforward:

     The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State; —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

     In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. [Article III, Sections 1 and 2]

     The most important of all the authorities – note that I do not use the word “powers” here – the Supreme Court has undertaken, “judicial review” of the law for Constitutional fidelity, is conspicuously absent from that list. It was arrogated to the Court by Chief Justice John Marshall’s opinion in Marbury v. Madison, and has never been seriously challenged.

     Let’s stipulate for the purposes of this tirade that “judicial review” is an authority somehow implied to the Supreme Court by the Constitutional phraseology. Inasmuch as judges routinely claim the authority to proclaim the law – anyone who’s ever sat on a jury has heard a judge say to that jury that “I am judge of the law; you are judges of the facts” – it’s as well established de facto as any other authority ever claimed by a court. Is it even conceivable that “judicial review” includes the authority to rule against the text of a law on the basis of the Court’s notions about what its drafters and those who voted on it intended?

     The most extreme extension of the notion of “deference to legislative authority” could not possibly embrace this assertion of judicial telepathy. Yet that was the foundation for John Roberts’s execrable majority opinion in King v. Burwell, his most recent rescue of the Patient Protection and Affordable Care Act, a.k.a. ObamaCare:

     It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”). Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation. But those requirements only work when combined with the coverage requirement and the tax credits. So it stands to reason that Congress meant for those provisions to apply in every State as well. [From the majority decision written by Chief Justice John Roberts ]

     This, then, must be taken as consistent with John Roberts’s conception of “judicial restraint.” In his masterpiece The Vision of the Anointed, the great Thomas Sowell wrote:

     Those who argue for this view of the judge’s role – for “judicial restraint” – often say that judges should follow the “original intent” of laws in general and the Constitution in particular. Yet ironically, this very phrase has been seized upon by opponents and given meanings far removed from that of those who use it. Professor Ronald Dworkin, for example, argues against original intent on grounds that “mental events” in the minds of legislators or writers of the Constitution are difficult or impossible to discern. But of course, nobody voted on what was in the back of somebody else’s mind. What was enacted into law were the meanings of those words to others – in short, the public meaning of words. As Justice Holmes put it, the relevant question was “not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.” Those who have urged judicial restraint have been very explicit that they did not mean to delve into the psyches of lawmakers, but to begin with the public meanings of the words the lawmakers used, as of the time they used them....

     Far more is involved here than a mere misunderstanding. Power is at the heart of the dispute. Although New York Times columnist Anthony Lewis wrote of the Constitution’s “expansive phrases that would be given contemporary meaning by each generation,” generations do not vote on the constitutionality of laws. Judges do. Thus the current generation’s decisions are not replacing those of a previous generation; judges’ decisions are replacing those of the current generation by imposing their own revision of what a past generation has said. The replacement of historical meanings by “contemporary meanings” is a major transfer of power to judges, not only from other branches of government, but from the people. It is an erosion of self-government and an imposition of the social vision of judges in its place.

     When I wrote just yesterday that law and the rule of law no longer exist, this is exactly what I meant. Today, black can mean white if five “Justices” of the Supreme Court decree it to be so...and no one can do a damned thing about it.

     There is no longer law; there is only the will and whim of those in power...and they have made it their top priority to own the courts, from the lowest to the highest. What, then, of the citizen’s supposed duty to obey the law? Upon what is it founded?

     More anon.

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