Amid all the controversy surrounding the recent SCOTUS decisions, it is easy to forget that federal courts do not have a monopoly on judicial activism. State courts—and in particular state supreme courts—can and do make bad decisions, often cleverly insulating themselves from further appellate review by resting their decisions on “independent state grounds.”
Supreme Court pundits generally have the Court’s members pegged along a simple political spectrum, with “liberal” denoting one side and “conservative” the other (with Justice Anthony Kennedy endlessly dancing from one side to the other). The assumption is that constitutional interpretation falls along a simple liberal-conservative continuum. Damon Root’s new book, Overruled: The Long War for Control of the Supreme Court, suggests that this binary view is too simplistic. A third approach, libertarianism, presents a theory of limited government power that is indebted to, and yet distinguishable from, post-New Deal liberalism and traditional social conservativism. Like most constitutional conservatives, libertarians call…
Yesterday, I completed my series of posts on departmentalism and judicial supremacy. My main point is that the issue turns largely on the history and that, while more research is needed, one real possibility is that the correct rule is a moderate judicial supremacy. Here are the original five posts: Departmentalism versus Judicial Supremacy – Part I: Some Preliminary Distinctions Departmentalism versus Judicial Supremacy – Part II: Getting from Departmentalism to Judicial Supremacy Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System Departmentalism versus Judicial Supremacy…
I well remember being almost persuaded by Francis Fukuyama’s wonderfully argued The End of History and the Last Man. The book suggested that the West and perhaps the world had reached an endpoint where democracies constrained by the rule of law and powered by market economies would dominate. If so, the future looked happy. The synthesis of the principles of democracy and economic liberty would lead to a peaceful prosperity where the chief excitement might come from the relentless doubling of computer power.
At least so far, however, The End of History has collided with history. Much of the Islamic world has not gotten the message. To be sure, the fall of the Soviet Union has led to many ex-communist states with an admirable commitment to law and the kind of economics that gains long-term prosperity. But there remains Russia, where democracy seems incapable of sustaining a loyal opposition, the state looms as leviathan, and the economy has large elements of a kleptocracy. Readers of Russian history should not be surprised. Richard Pipes has long argued that since the 15th century, Russian culture has been marked by disdain for rights of property and an enthusiasm for a patrimonial regime with little separation between state and economic and civic society.
But nothing better represents the failure of Fukuyama’s thesis than plight of Euro and the Greek crisis. The Euro was the monetary representation of history’s end in the birthplace of the West.
Academic-speak these days is quite easy to imitate. Here is a representative specimen that might well be found in your email in-box if you happen to work in American higher education: “As a community we must all rededicate ourselves to dialogue about inclusion, diversity, and social justice, and to rejecting the hegemonic discourse of oppression that dominates the white/heteronormative culture.” Lots of abstract jargon strung together to warn opponents and reassure friends—nothing in the way of real thought or even mere description.
In this post, I want to draw together some of my earlier posts to explore what the norm of judicial supremacy might be. Let me remind the reader of two points from my prior posts: First, the content of the executive and legislative obligation to follow judicial precedents turns in significant part on the relevant practice at the time of the Constitution’s enactment. Second, there is a similarity between the argument for judicial precedent (which require courts to follow judicial precedent) and the argument for judicial supremacy (which require the executive and legislature to follow judicial precedent).
While I have said that there does not appear to be evidence of genuine departmentalism at the time of the Constitution – of the executive and legislature being entirely free to ignore judicial precedents – it is not clear what the practice was. One possibility is that the executive and legislature were bound to follow the courts once a single case (that is, precedent) was decided. Another, in my view more likely, possibility is that a series of decisions by the courts reaching the same result were required before the executive and legislature were obligated to follow the judicial precedents.
One bit of evidence for this latter view is that this appears to have been the rule as to a court’s obligation to follow its own precedent. A single precedent did not appear to obligate a court to follow that precedent. Such a precedent needed to be considered, but it was not binding. Rather, it was a series of precedents that obligated a later court to follow the precedent. See here.
Having written before in this space about venturesome Americans and their actions on the international stage, I am moved to return to the subject. Some new books—Karen Paget’s Patriotic Betrayal: The Inside Story of the CIA’s Secret Campaign to Enroll American Students in the Crusade Against Communism, Gregg Herken’s The Georgetown Set: Friends and Rivals in Cold War Washington, and Richard Norton Smith’s new biography of Nelson Rockefeller—yield insight into the “global meliorism” that has defined American policy for a long time and the American character for even longer. What they also do is offer a picture of the genesis of the national security establishment that we know today.
Leading up to Justice Kennedy’s fateful 5-4 decision, there was plenty of debate on both sides, and the proponents of same-sex marriage emphasized that they just wanted to be treated the same as heterosexual couples. They even coined the deceptively simple slogan, “Marriage Equality.” That was then.
For its lay audience City Journal asked me to explain the King v. Burwell decision, which permitted federal exchanges under the Affordable Care Act to receive subsidies. Within its brief compass, I made two points.
First, I suggested, contrary to some conservative commentators, that the majority opinion did not demonstrate that Chief Justice Roberts was unprincipled but that instead the decision followed from a principled purposivist theory of statutory interpretation. I showed why the theory was wrong: like Mike Rappaport, I believe the meaning of the provision was clear and neither purposivist nor intentionalist interpretation should be allowed to defeat a clear meaning. This analysis of Roberts’ opinion comports with my more general view that four justices labeled conservatives are often fractured, because they are more legalists than ideologues, whose different interpretive methods lead to different results that are sound under their principles even when the principles are unsound.
Second, I noted that the effects of purposive interpretation are generally friendly to progressivism because it allows judges to choose overriding purposes that advance progressive goals that were not written into law. But let me be clear that any aid that purposivism gives to progressivism is not a reason to reject purposivism, just an effect of that interpretive method.
Here is an analogy.
Last year I penned an analysis and something of a paean to the Declaration of Independence. Perhaps a follow-up is in order. Who knows, perhaps it could become a fourth of July tradition? Certainly there is a good deal more in the famous text than one entry could survey. In fact, the general purpose of this one is to provide material for reflection. That would be a thoughtful way of being patriotic on this day of commemoration and celebration.
The Declaration applies various sorts of principles – theological; anthropological; and political – to a set of “Facts” – chiefly “injuries and usurpations” on the part of the British monarch (and, belatedly, Parliament). It judges the facts as evincing a design of tyranny, and concludes, as it began, with the necessity and duty of revolution and independence, understood as self-government by and for free men and women.