The travel ban case is headed to the Supreme Court by way of the once redoubtable Fourth and always activist Ninth Circuits, leaving revisionists to wonder how it might have unfolded had it made its way upward through Judge William H. Pryor’s Eleventh. Pryor’s view of the judicial role exhibits appropriate assertiveness within its sphere and a fitting humility beyond it.
The particular genius of Marbury v. Madison was John Marshall’s act of jujitsu. President Jefferson wanted William Marbury kept off the federal bench and let it be known he would defy any Supreme Court order to the contrary, so Marshall delivered that outcome while seizing the larger prize of judicial review. Two centuries on, President Jefferson’s successor Donald Trump is reduced not to defying the Court but rather to tweeting ruefully that the judiciary’s consideration of his travel ban is “slow and political.”
The case of Washington v. Trump—in which a panel of the Ninth Circuit expressed apparent sympathy, during Tuesday’s arguments, for a district judge’s restraining order against the President’s pause on immigration from seven Muslim-majority countries identified as terrorism threats—has less to do with an overreaching judiciary than with an underperforming Congress.
One of the signal achievements of Bertrand de Jouvenel was establishing the existential status of power: “The Minotaur,” he called it, a metaphysical entity, nearly organic, with an instinct for both survival and expansion. If Mark Tushnet’s overeager call, predicated on a Hillary Clinton presidency, for judges to emerge from what he alleged to be their “defensive crouch liberal constitutionalism” and slay the foes of Progressivism demonstrated anything, it was that there is, miracle of miracles, such a creature as a judicial Minotaur. Randy Barnett’s much discussed and certainly much warranted reply at The Volokh Conspiracy confirms it. Yet the judicial Minotaur…
Randy Barnett recently had a great line on Twitter (link no longer available) accusing an interlocutor of advocating “the judicial supremacy of dead justices.” The description wasn’t accurate, in my view, and wasn’t a very substantive answer to the question by Adam White that prompted it. But it’s on Twitter, so we can lighten up some. And it’s a great zap-line. Is anyone really in favor of “the judicial supremacy of dead justices”?
Last week I discussed why bicameralism is not necessarily a status-quo preserving institution, at least in the sense that conventional wisdom suggests bicameral legislatures produce less legislation relative to analogously situated (however defined) unicameral legislatures.
Commentators often ignore that in “strong” bicameral systems, as exist in the U.S., “second” legislative chambers can initiate legislation itself as well as kill legislation approved by the other chamber. Depending on how much legislation each chamber initiates, and on cross-chamber kill rates, it’s entirely possible that a bicameral legislature will enact more legislation than a similarly-situated unicameral legislature.
To be sure, it is a bit of a bait-and-switch to purport to consider the impact of veto players on legislative production and then initially discuss an institution that can initiate legislation as well as stop legislation. So let’s now face the original question fairly: What about institutions that can only veto legislation without also having the power to initiate legislation? Think of judicial review.
Most people think of judicial review in the way that Justice Owen Roberts described it in a 1935 Supreme Court decision:
The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty — to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question.
It seems straightforward. A judge takes a law, sets it next to the Constitution, and determines whether the “latter squares with the former.”
The Supreme Court is lost. Sunday night’s debate settled that. The question now is not how to save the Court but rather how to navigate an adverse one, and the answer is to deprive it of power.
George Will has enjoyed a long career as a public intellectual, an especially illustrious one for a Right-of-center figure. For over four decades, Will’s commentary has appeared in intellectual magazines and newspapers including National Review, the Washington Post, and Newsweek. He has many books to his name as well as a widely syndicated newspaper column, for which he won a Pulitzer Prize in 1977. A Ph.D. from Princeton, he’s also a familiar talking head on television, often sporting a bow tie and playing the role of the sober, erudite Washington insider.
Those four decades have been a tumultuous period in our political culture; it would not be surprising if Will’s political views had evolved over that time, and indeed they have. His 1983 book, Statecraft as Soulcraft, was a full-throated paean to strong-government Tory conservatism, in the Burkean tradition. He has lately been tacking in the libertarian direction.
Professor Mark Tushnet is nothing if not candid. In a series of posts written for the Balkinization legal site, Tushnet exhorts his fellow Progressives to look around, recognize that a majority of appellate judges are now Democratic appointees, and abandon “defensive crouch liberalism.” Instead of “looking over their shoulders for retaliation by conservatives,” Tushnet proposes (among other things) that Progressives compile lists of Supreme Court cases “to be overruled at the first opportunity” on the grounds that they were “wrong the day they were decided,” and take a “hard-line approach” with conservatives in the culture wars.