Sometimes you need a sounding board. I sometimes get the sense from Ross Douthat's columns that I would enjoy discussing issues with him. He seems reasonably bright, reasonably informed, and sufficiently capable to challenge my opinions so as to make our conversations interesting, without the narcissism or dogmatism that can turn political debates into a futile bore. (He has some sacred cows, sure, but so does everybody.)
But I am losing the sense that he would enjoy discussing issues with me. Because if he were the type to truly enjoy debate, or to seek challenge of his opinions rather than looking for affirmation, I doubt that his column on the Supreme Court would have come out in quite the same way. It reads like a mediocre undergraduate essay, foggy on the facts, weak on the logic, without any clear basis for the "cure" he proposes. I suspect that he's raised the same issues before, perhaps even blogged about them, but in contexts where he had a sympathetic audience and could avoid or ignore criticism.
Douthat opens with a fair criticism of the judicial nomination process. Sotomayor will establish herself as a sufficiently learned jurist but, when confronted with serious controversies, will hide behind the excuse that she can't comment on an issue that might come before the court. Never mind that in order to establish her judicial bona fides, she will comment on any number of non-controvercial subjects that the court might be asked to revisit - it's those 5-4 and 6-3 issues that are off the table. But that won't be a standard she created - that's the standard the Senate created and perpetuates. I suggested a possible work-around - the Senate could ask a candidate to state the best arguments on both sides of a controversial issue without picking a side. What a choice for a Senator... having already decided not to filibuster, do you press hard on the issues or preen for the camera?
Douthat proceeds to suggest that the politicization of the Supreme Court is a bipartisan problem, but that it is somehow more of an issue now than at any prior time in the nation's history. Granted, it's unusual for a conservative to admit that the Republicans have done their best to build an activist judiciary, and to resolve cases through the judiciary when they can't prevail legislatively (even in contexts where they control the legislative and executive branch, as was the case for most of G.W.'s tenure, or after John Engler created his activist "conservative" court in Michigan). But new? I suggest that Douthat pick up a dusty old case reporter from 1803, and read the case that in large part created the dynamic he now deplores - Marbury v Madison. Perhaps he should also grab a reporter, just a few volumes down the shelf, and read Martin v Hunter's Lessee.
The context for the Supreme Court acting as the final arbiter of federal constitutional questions was resolved centuries ago. Does Douthat believe that, at that time, nobody noticed a political aspect to the court's direction, rulings, and expansion of its own power? Politicization and the consequences of a bad ruling are more significant now than, say, back in 1857, when the Supreme Court kinda sorta made a bad ruling that, in the view of many (although granted, a view disputed by some historians) kinda sorta contributed to the subsequent civil war? Or when the post-Civil War Supreme Court decided to limit the reach of the 14th Amendment's and roll out the red carpet for Jim Crow laws? Or when FDR threatened to stack the Supreme Court with new justices? (How did that one get past Douthat?)
Douthat's contention that complaints about the Supreme Court's power "have more merit now than ever" is based not on any substantive review of their rulings, but on statistics.
According to calculations by the Harvard law professor Jed Shugerman, the Court has gone from overturning roughly one state law every two years in the pre-Civil War era, to roughly four a year in the later 1800’s, to over 10 a year in the last half-century. So too with federal law: Prior to 1954, the Court had struck down just 77 federal statutes in a century-and-a-half of jurisprudence; in the 50-odd years since, it’s overturned more than 80.To anybody slightly conversant with Supreme Court history, what of that would be surprising? Subsequent to the Civil War, the Supreme Court has incorporated most of the rights enumerated to in the Bill of Rights to the states, meaning that they could start reviewing state laws as violative of federal rights. It's a bit like arguing, "The Supreme Court made no decisions under the Thirteenth, Fourteenth or Fifteenth Amendments before the Civil War, then suddenly for no reason I can see they started overturning laws as violating those Amendments."
There's another factor, one Douthat should know about. There's a whole body of Supreme Court precedent that might be described as the "what about now" decisions. States, confronted with a ruling that a particular statute is unconstitutional, often take a "try and try again" approach. It's unconstitutional to ban abortions? Well then, how about we impose a seven day waiting period... no? How about 48 hours? How about we require spousal notification... no? Then how about parental notification? How about we give state funds directly to K-12 parochial schools... no? Then how about we give them free textbooks, and create a voucher program where parents decide where to use the voucher? There are many other examples. Once you decide that a line can be drawn, you're going to get a lot of subsequent argument over where to draw that line, and the decisions start to look more like the making of policy than the neutral application of law. (Rival paper or no, Douthat might benefit from reading George Will.)
In terms of federal legislation, let's see... What happened in 1954? I'm sure it was nothing significant. Seriously, it's like there's a huge blind spot in Douthat's understanding of history - we have a civil war, get a new set of constitutional amendments resulting in Supreme Court scrutiny of state laws, and suddenly more state laws are reviewed. We have a seminal case that overturns "separate but equal" and paves the path for integration and the civil rights era, and suddenly the Supreme Court is doing crazy things like overturning state anti-miscegenation laws.
You also have the evolution of the court, post-FDR, with justices being asked to review commerce clause cases that aren't particularly sexy or interesting to laypersons (probably not to most lawyers) but play a part in the increased scrutiny of state and federal legislation. We found ourselves moving into an era where the federal government was increasingly regulating state activities, often by attaching strings to grants of federal money, with judicial review of whether those strings were constitutional, whether state efforts to circumvent the strings were permissible, whether the strings constituted "unfunded mandates".... etc. We have also seen an explosion in the quantity of federal law, including the creation of a huge body of federal criminal law, and a federal "war on drugs" (now accompanied by a "war on terror") that is often held up as justification for rolling back protections extended under the Bill of Rights. We had the development of a highly mobile society, the rise of information technologies, and the extension of federal laws and regulations into areas prior generations couldn't have imagined.
The change wasn't the consequence of the flipping of a magic "judicial activism" switch. A lot was going on. This is a context where statistics may be interesting, but prove nothing.
The public doesn’t seem to mind this increasing assertiveness: The Supreme Court regularly shows up in polls as the most respected branch of government. But settling so many vexing controversies with 5-to-4 votes — effectively making Anthony Kennedy the nation’s philosopher king — is an awfully poor way to run a republic.Except that when you have a 5:4 decision, every vote on the majority side is arguably the "swing vote". It's not as if Kennedy's not predictable - for the most part you know where he's going to come out on any given case. This is really no different from Scalia's years of writing lengthy dissents. Now he falls into the majority. Or during the period when we were told that both O'Connor and Kennedy were "swing votes", but we were still ending up with a lot of 5:4 decisions. Has it not occurred to Douthat that there's a reason we have an odd number of Justices? That we've known since the dawn of the Republic that they would be deciding issues by majority vote, and would sometimes vote 5:4 on difficult issues? That sometimes being a "swing vote" reflects that you're giving an issue more careful thought and consideration than a Justice who sits as an immovable anchor on one side or the other?
Let's say you have a split among the federal circuits, with most circuits having ruled on a particular interpretation of the Sherman Antitrust Act, with a narrow majority of circuits favoring a particular approach to the law. Four Justices vote to grant certiorari, the issue is well-briefed, well-argued, and is debated among the Justices. They come back with a 5:4 decision. To Douthat, this is a bad thing? That they've just unified the interpretation of a difficult issue of law, creating predictability and uniformity across the nation in relation to an issue that has previously triggered a lot of extremely expensive litigation? It's as if he thinks the Supreme Court does nothing but make personally motivated decisions on reproductive rights cases. In fact, that seems to be exactly what he thinks:
The modern Court’s most enduringly controversial power grabs — with Roe v. Wade leading the way — were usually the work of liberal justices, and even the more modest liberal theories of jurisprudence tend to depict the Justices as soldiers in the progressive cause, constrained primarily by what the political climate allows them to get away with.I obviously hang out in the wrong circles, because when I randomly ask one of my peers, "Which case represents an enduringly controversial expansion of power that has the most profound impact on our daily lives", I'm not going to hear about Roe. I'm going to hear about the Commerce Clause, and cases like Wickard v Filburn. Douthat's so focused on a single tree, that he can't see that he's standing in a forest of Commerce Clause issues.
There's another point to be made here: Roe v Wade limits the state's ability to control the lives and actions of citizens, to intrude into the private medical and reproductive choices of competent, rational adults. As a social conservative, Douthat sees an action that frees people from state control as a "power grab". Were he a libertarian, he might still find fault in the court's reasoning, but he would argue instead that it's an area the state has no business regulating at all - the power grab would lie in the state's removing the choice from the individual. This is a context where Douthat apparently prefers the power of the state over either the rights of the individual or the power of the federal government to limit state intrusion. But that seems more opportunistic than "conservative".
Douthat returns to statistics:
But in practice, the main divide between liberal and conservative judges tends to be over the responsibilities of the federal government, not judicial activism per se. During the last decade of the Rehnquist Court, for instance, the conservative Clarence Thomas and the arch-liberal John Paul Stevens were almost equally willing to vote to strike down legislation. It’s just that Thomas was much more likely to rule federal actions unconstitutional, while Stevens was more likely to vote to overturn state laws.Once again, Douthat ignores court history, substituting statistics and shallow political labels for substantive analysis. It's reminiscent of Cheney's trying to write Colin Powell out of the Republican Party, or Douthat's sneering at Arlen Specter as a "centrist" and arguing that "Rockefeller Republicans" aren't conservatives. Political labeling as name-calling, with no apparent grounding beyond "I'm conservative, so people who disagree with me are not." If Stevens is "ultra-liberal", what was Justice Blackmun? Justice Brennan? Justice Marshall? Chief Justice Warren?
What makes Thomas the paradigm "conservative" Justice? Back in the day when Thomas was best known for joining Scalia in dissent, how did this divide manifest itself? I suspect that Douthat cherry-picked Thomas, because he has been around long enough to have a track record and, of the longer serving conservative Justices, was the most likely to strike down federal laws. But that doesn't make the case that he's representative of either conservatives or conservative justices. Also, is Douthat offering an inference about the court, or about a particular justice of the court? If it's the former, the voting record of an outlying judge is peripheral to even the statistical argument. If it's the latter, looking at only those cases where a statute is overturned tells you only part of the story, and may not even be representative of the whole - you must also look at the justice's dissenting opinions.
There are bipartisan ways that the Court could be reined in, and the legislative branch reinvigorated. Shugerman, Caminker and others have proposed a supermajority rule, for instance, requiring a 6-to-3 vote to overturn federal legislation.I suggest that Douthat pick up a dictionary, and look up the term "coequal." The fact that the Supreme Court can overturn legislation is not an accident of history. It's part of the design. I pause for a second to ask, does the name-dropping carry any significance to the average reader? Who hears the name "Caminker" and thinks, "Oh, yeah, Evan, from U of M"? Who's going to think, "Didn't those guys write about this issue, six or so years ago? Out of concern about the activism of the Rehnquist court?" These are the most prominent voices that Douthat can find? In fairness, one of the reasons you don't find much discussion of these ideas is that they can't get past the idea stage without a constitutional amendment. They're thought exercises but, as policy, are something that would require judiciousness by a court and a Chief Justice who favors consensus over expediency.
Caminker's concern was the reversal of federal statutes on federalist grounds. He saw the series of 5:4 decisions as inconsistent with past practices and insufficiently deferential to the presumption that federal laws are constitutional. But that begs the question of whether or not those decisions were sound. History includes some outrageous Supreme Court rulings that had clear majority support. It also overlooks the fact that the change was brought on in no small part due to Justice Rehnquist's becoming Chief Justice. Rehnquist favored expediency over consensus, and wanted to limit or overturn a number of historic cases. He was ultimately joined by other justices who scorn stare decisis and deference in relation to laws they regard as wrong, namely Scalia and Thomas. And if Douthat was paying attention to Caminker, he would have some idea that the Rehnquist court turned its sights on the progeny of the Great Society cases and the associated expansion of federal reach under the Commerce Clause. In terms of the evolution of the court, Douthat might have noted that the "conservative majority" responsible for those decisions was described as Chief Justice Rehnquist along with "Justices O’Connor, Scalia, Kennedy, and Thomas" - as previously noted, Kennedy can be quite predictable.
So what's magic about the number "six", or even the number "seven"? If Douthat believes that some special weight should be given to a Supreme Court decision that's decided by a clear majority... let's say, 9:0, why does he mark 1954, most notable for it's unanimous decision in Brown v Board, as the beginning of the end? Why does he spend so much time fretting over Roe v Wade, a 7:2 decision?
And, oh my goodness, Douthat takes this thought experiment seriously:
To get conservatives on board, the rule would have to be extended to state legislation as well. This isn’t as crazy as it sounds - versions of the supermajority idea have been batted around by left and right alike since Reconstruction, and merely proposing it might spur the Court toward greater consensus, and perhaps greater modesty as well.It's bad enough that Douthat doens't understand the concept of coequal branches of government as applied to the Executive, Legislative and Judicial branches. Now he seems to be operating under the belief that the U.S. Supreme Court owes deference to state legislation that contravenes the U.S. Constitution. This, he believes, is conservative? And how puzzling... who would have thought that there would be people arguing to impede U.S. Supreme Court review of state laws following reconstruction, at least up to the point the Court declared itself to be cool with Jim Crow laws? What might their goal have been? Douthat says these same concerns started rearing their head again after 1954 and Brown v Board? What a remarkable coincidence.
Absent such constraints, the best reform would be term limits for the Justices, instead of lifetime tenure. Give them 12 years, rotated on a regular schedule, and then send them on their way.I've previously noted that term limits for justices are silly and largely unworkable. But Douthat's goal here seems to be something far less than admirable: He seems to be hoping that term limits will further politicize the court:
Such limits wouldn’t reduce the Supreme Court’s power directly, but it would help us see the Court for what it has become - a deeply political institution, as fallible as any other, and answerable, when all is said and done, to us.Same as it ever was.
It's hard to take this argument seriously, even granting Douthat's weak grasp of the court's history and its role as an institution. Douthat woud no doubt argue that, were term limits imposed, the incumbents should somehow be grandfathered in and their retirements staggered. Otherwise, I sense that Roberts and Alito would suddenly feel very lonely.
Of course, the biggest question raised by Douthat's sudden recognition of Republican judicial activism, and his concern for depoliticizing the court and impeding its ability to review state court decisions, is "Why now?" He says this has been a problem for more than fifty years, that things got a lot worse more than thirty-five years ago, and the conservative-dominated Rehnquist and Roberts courts represent more than two decades of "justices gone wild".
The answer, if you've read any appreciable amount of Douthat's work, is implied when he mentions Roe v Wade, and also by his lack of awareness of federalism and commerce clause controversies. He's concerned that there will soon be a 5:4 majority that's skeptical of state limits on abortion rights, and he hopes to make it more difficult for the Supreme Court to review or revisit state restrictions on abortion laws. And if he can't do that, he wants to shout from the rooftop that the only reason the Supreme Court could disagree with his (religion-based) opposition to abortion is that it's a political body. His goal here is to preserve the status quo through a few more Supreme Court retirements, and it's not something he would be proposing if the court were shifting toward an anti-Roe position - it's little different from a call to stack the court.
What would Douthat think of a rule that a Supreme Court precedent can't be overruled or limited unless an equal or greater number of justices vote for the change? Brown v Board would prevail over Plessy v Ferguson, as it was a 9:0 decision. You would get a great deal of stability, and any chief justice who wanted to build a legacy would have to strive for broad consensus, obviating any need to try to (unconstitutionally) legislate a supermajority standard or amend the Constitution to impose one. Except most of the restrictions on reproductive rights that followed Roe v Wade would have to be tossed, because they didn't get the support of seven or more justices. What do you say? Do we have a deal?