PS 104- Oct 22 - Political Science 104 Introduction to...

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Unformatted text preview: Political Science 104 Introduction to American Government Lecture October 22, 2007 The Power of Judicial Review the ability of the judiciary (supreme court) to declare the acts of the other two branches unconstitutional Article III says nothing about the power to review the constitutionality of acts of Congress or the President The Supreme Court assumed that power in 1803 (Marbury v. Madison): it is "the province and duty of the judicial department to say what the law is" Judiciary is intentionally insulated from majority opinion Article III Text Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. Consequences Judiciary is least responsive branch - Life terms - One view: court's role is to protect political minorities The "Least Dangerous Branch?" Court's ultimate power balanced by -Lack of enforcement mechanism; can't do anything to implement their decisions. They are up to the other branches. It is very rare for them to actually order the other branches to do something. They do not have police force/ administrative capacity. -Need for cases to be brought to it- courts cannot go look for cases. They also do not provide guidance for executive branch. -Inability (in theory) to mandate policies- Judges are responsible for only interpretation in cases of disputation. Impact of Court Decisions Political consequences: Bush v. Gore (2000 election case) -Dispute over who actually won 2000 election in Florida. -Critics: Republican justices handed presidency to Bush. -Supporters: Court had to step in to settle irresolvable political issue. Policy prescriptions -Miranda set out precise language that police had to use in making arrests- court determined what kinds of rights suspects had against police officers. -School busing cases: implementation of policy -Redistricting and apportionment cases -Gay marriage Courts and Legitimacy Courts have no enforcement mechanism, so must rely on executive branch compliance and public acceptance (legitimacy) of rulings- one of the ways courts deals with this is not just the symbolism (court sits up high, they are superior etc.) Judges also do take into account the potential reaction from the public. They fear issuing some policy that would make a mass majority of people to break the rule and not respect the court decisions anymore. To what degree, then, do courts take into account public opinion? Brown vs. Board of Education--very controversial. The court first refused to hear it. Roe vs. Wade--also first refused to hear it. But court wanted to show that they were not political. Courts do take into account public opinion. Deciding Cases Issues in decision making: (1) statutory interpretation: what does the law say, or mean say, (2) constitutional interpretation (original intent vs. loose construction, more later)- what they are actually meant vs. more towards contemporary meanings later)and values. (3) Precedent (stare decisis)- helps the court to make consistent body of law. (stare decisis)(4) Public opinion and political contextcontextthe supreme court is a political institution by the fact that they vote. They are not entirely scientific. Interpreting the Constitution Activism vs. Restraint: do justices work to expand the influence of the courts over Restraint: state actions, substituting its judgment for that of legislatures or executives? Strict vs. "Loose" Construction: Are judges limited to a literal reading of Construction: constitutional language, or can they infer meaning and apply language in a modern context? Most of the time, judicial activism goes along with loose construction, and restraint time, with strict construction, but not always Originalism vs. Living Constitution Different concepts of constitutional interpretation: Literalism: the language means what it says, period. Literalism: Originalism: interpret constitution according to what Framers generally Originalism: understood the language to mean at the time; "reasonable construction". Living Constitutionalism: interpret constitution conceptually, allowing for Constitutionalism: revision according to historical and social trends, according to a Judge's persona views, or based on application of constitutional theory. Concepts and Politics No clear answer on which method is best: constitution is entirely silent on the issue Concepts tend to collide with politics: Generally, originalism and literalism are associated with conservative outcomes, living constitutionalism with liberal outcomes. - Increasing discretion to judges, even an ability to disregard the text when it suits them. Problems? Literalism quickly leads to bizarre results -"Freedom of speech" is not useful as a literal phrase; freedom of speech excludes hearing, etc. -Same with "equal protection of the laws"- in a literal sense, it means that government may not make ANY kinds of discrimination; citizens vs. non citizens, people over 21 vs. people under 21, etc. Same true for Living Constitutionalism: A constitution interpreted so as to foster a particular view of social justice loses its relevance as a constitution Originalism? If we are trying to determine what the Framer's thought, what do we examine? -Constitutional convention debates, Federalist Papers, congressional record? Constitutional Ratification debates? -What if a provision is the clear result of compromise? Whose interpretation controls then? Any way to resolve this (other than saying, the hell with it, I'm going to medical school) Why All the Fuss? Handful of decisions in the balance: Roe (abortion in particular), voting (redistricting), commerce clause interpretations. Use of ideology as a "litmus test" in judicial nominations. Use of filibuster as a way of blocking nominations. "nuclear option"- changing Senate rules to prohibit filibusters on judicial nominations. Question: What Role does the Senate have in this process? Court inevitably has a political component to it (there aren't objectively "correct" interpretations) What is the role of the Senate's "advice and consent" power? What are the acceptable criteria for confirming or not confirming judges? should the senate have the power to reject the nominee just because he doesn't like the judge's beliefs? Norms General principle: nominees should not be asked how they would rule on specific cases (longstanding, but now referred to as the "Ginsberg Rule"). Judges should not be asked how they would rule on specific cases But: everyone wants to know how nominees will rule on specific cases This is, after all, kind of the point Joe Biden's 1st Question to Roberts, 2005 You know, to continue your baseball analogy, I'd much rather be pitching to Arthur Branch, sitting behind you there, on "Law and Order," than you. It's like pitching to Ken Griffey. I mean, you know, I'm a little concerned here that -- I'd like you to switch places with Thompson. I know I know as much as he does. I don't know about you. Judge, look, I want to try to cut through some stuff here, if I can. I said yesterday this shouldn't be a game of "Gotcha," you know. We shouldn't be playing a game. The folks have a right to know what you think. You're there for life. They don't get to -this is the democratic moment. They don't get a chance to say, "You know, I wish I'd known that about that guy. I would have picked up the phone and called my senator sand said, 'Vote no,' or, 'vote yes.'" Whichever. And so what I'd like to do is stick with your analogy a little bit, because everybody's used it: baseball. By the way, to continue that metaphor, you hit a home run yesterday. I mean, everybody -- I got home and I got on the train and people saying, "Oh, he likes baseball, huh?" Seriously. The conductors, people on the train. And it's an apt metaphor, because you just call balls and strikes, call them as you see them, straight up. But as you well know, I'd like to explore that philosophy a little bit, because you got asked that question by Senator Hatch about what is your philosophy, and the baseball metaphor is used again. As you know, in major league baseball, they have a rule. Rule two defines the strike zone. It basically says from the shoulders to the knees. And the only question about judges (ph) is: Do they have good eyesight or not? They don't get to change the strike zone. They don't get to say, "That was down around the ankles and I think it was a strike." They don't get to do that. But you are in a very different position as a Supreme Court justice. As you pointed out, some places of the Constitution defines the strike zone. Two-thirds of the senators must vote. You must be an American citizen, to the chagrin of Arnold Schwarzenegger, to be president of the United States -- I mean born in . The strike zone is set out. But as you pointed out in the question to Senator Hatch, I think, you said unreasonable search and seizure. What constitutes unreasonable? So, as much as I respect your metaphor, it's not very apt, because you get to determine the strike zone. What's unreasonable? Your strike zone on reasonable/unreasonable may be very different than another judge's view of what is reasonable or unreasonable search and seizure. And the same thing prevails for a lot of other parts of the Constitution. The one that we're all talking about -- and everybody here, it wouldn't matter what we said, from left, right and center -- is concerned about the liberty clause of the Fourteenth Amendment. It doesn't define it. All of the things that we debate about here and the court debates that deserve 5-4 decisions, they're almost all on issues that are ennobling phrases in the Constitution, that the founders never set a strike zone for. You get to go back and decide. You get to go back and decide like in the Michael H. case: Do you look at a narrow or a broad right that has been respected? That's a strike zone. So, as Chris Matthews said, "Let's play baseball here." And it's a little dangerous to play baseball with you, like I said. But really and truly, it seems to me maybe we can get at this a different way. (deep breath) The explicit references in the Constitution are -- you know, there's nothing anyone would expect you or any other judge would do anything about. You wouldn't say, "You know, that's a really bad treaty they're voting on, so we've got to make it require 75 votes in the Senate." You can't do that. But again, as Justice Marshall said -- and I quoted him yesterday -- he said that Marshall's prescription that the Constitution endure through the ages -- I might add, without having to be amended over and over and over and over again -- after the first 10 amendments, we haven't done this very much in the last 230 years. So many of the Constitution's most important provisions aren't the precise rules that I've referenced earlier. And sometimes the principles everyone agrees are part of the Constitution or as the late chief justice -- your mentor -- said, quote, "tacit postulates." He used that, as you know, in a case just before you got there, in Nevada v. Hall. He used the phrase "tacit postulates." He said that these tacit postulates are as much ingrained in the fabric of the document as its express provisions. And he went on to conclude that -- this case was about -- the case is not particularly relevant, but the point is, I think -- Chief Justice Rehnquist made this vital point and it was about state's right and language that didn't speak directly to them in the Constitution. And he concluded that the answer was a rule he was able to infer from the overall constitutional plan. So, Judge, you're going to be an inferrer, not an umpire. Umpires don't infer. They don't get to infer. Every justice has to infer. So I want to try to figure out how you infer. I want to figure out how you go about this. And so let me get right to it. And I want to use the Ginsburg rule. I notice Ginsburg is quoted. I'm quoted all the time about Ginsburg: "Judge, you don't have to answer that question." I might point out that Justice Ginsburg, and I submit this for the record, commented specifically on 27 cases, 27 specific cases. I will just speak to a couple of them here. Now, you have already said to the chairman that you agree that there's a right to privacy. And you said the Supreme Court found such a right in part in the Fourteenth amendment. My question is: Do you agree that -- not what said law is -- what do you think? Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment? Translation "will you vote to uphold Roe v. Wade?" Roberts: "up yours, Senator." Possibilities Senate has a responsibility to protect the court and the public against nonmainstream justices Senate should defer to presidential recommendations, barring exceptional circumstances; should not involve inquiries into specific cases. Post and Siegal: have to balance the competing considerations, insuring independence of judiciary and concept of self governance ...
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