The United States Supreme Court decides only about 80 cases per term. (Why 80? There are 39 days for oral argument and they really can’t be bothered to sit still for more than two cases a day, or to add argument days.) That’s what any decent county judge handles in a week. Now, granted: normal judges just handle stupid stuff, like who goes to jail for how long or who owes money to someone else. In contrast, the Supreme Court’s business is really heavy, brother—so heavy that the Court has again left a ton of hugely important decisions for the end of…
Archives for June 2015
In American constitutional law, it is common to speak of “levels of scrutiny” or “tiers of judicial review.”
It has been reported that this term is shaping up to be one of the most liberal at the Supreme Court since 1969. Another report by Eric Posner shows that the justices appointed by Republican Presidents are agreeing less among themselves, while the justices appointed by Democratic Presidents remain a united bloc.
We should be cautious about reading this information as a trend. The case mix changes from year to year and thus there can be expected to be overall ideological variation from year to year depending on that mix and the justices’ idiosyncratic views. But there is no doubt that the country is moving left at least on social issues and the oldest adage about the Court’s decision-making is that it follows the election returns. Certainly, the expected creation of a right to same-sex marriage would be unimaginable without the rapid and dramatic shift in public opinion on the issue.
The more interesting question is why Republican justices tend to fracture while the Democrats stay united. The first reason is that Supreme Court opinions implicate not only ideology, but jurisprudential methodology and Republicans are more divided on jurisprudence.
Lord Salisbury, Britain’s 19th century strategist and prime minister, famously remarked to a correspondent that “if you believe the soldiers, nothing is safe.” Alarms that experts raised from their own preoccupations, he believed, required tempering with common sense before such warnings could offer a reasonable guide for policy. Much of the discussion of American security over recent years brings to mind Salisbury’s observation. Mark Helprin’s “Indefensible Defense” in National Review’s June 22 offers a case in point.
In my previous post, I noted that any obligation of the executive and Congress to follow court precedents – either a strong judicial supremacy or a milder obligation to follow a series of court decisions – would have its source in either an interpretation of the Constitution’s judicial power or federal common law. But that reading of the Constitution or the common law would require evidence that judicial precedents were seen as imposing such an obligation.
What then might that evidence be? One possible source of evidence are statements made by various framers at the Philadelphia and Ratification Conventions that Randy Barnett has recently blogged about. For example, he notes that James Wilson said:
If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.
One might read Wilson as stating that a judicial decision declares an unconstitutional law “null and void” and therefore the executive is obligated not to enforce it. But Wilson need not be read that way. As Ed Whelan notes, this statement might be understood instead as stating that the executive will as a practical matter not be able to enforce laws that the courts are unwilling to apply in adjudications.
With President Obama’s call (link no longer available) to raise the national minimum wage to $10.10 per hour, Americans have been divided on how this would affect businesses and workers. Many opined that an increase would pull millions of workers above the poverty line, stimulate business profits, and even benefit taxpayers by reducing the number of citizens on food stamps. In reality, raising the national minimum wage would harm the very people it’s intended to help. By forcing business owners’ hands on the matter, the government would accelerate unemployment, diminish resources and profits for businesses, intensify the social divide, and undermine the…
A new biography, Elon Musk: Tesla, Space X, and the Quest for a Fantastic Future, provides more evidence that America does not face secular stagnation—a state of slow growth and little innovation. I have always been skeptical of this claim, because many of the statistical measures on which it relies are those of our centralized government that miss out on improvements in health and enormous benefits of new technology, particularly the internet.
But some intelligent observers, notably Peter Thiel, have argued that recent gains are narrowly focused on information technology. As Thiel provocatively puts it: “We were promised flying cars, and instead what we got was 140 characters.” Musk, however, has become a billionaire by building actual products that do gesture to a fantastic future where such items as flying cars are imaginable.
One is an electric car, Tesla, that has attracted attention not only for its battery engine, but for its aesthetics. It combines Silicon Valley know-how with Hollywood dazzle.
David Cortman showed remarkable poise and command last January when he made his first appearance before the Supreme Court. The case was Reed v. Gilbert, and he represented the cause of a small, fledgling church having no fixed site for its services. His masterful performance was recognized this week: victory, with a box score of 9 to 0. Cortman brought to the aid of this small congregation all of the dedication and resources of the Alliance Defending Freedom.
At long last the U.S. Department of the Treasury has taken an action for which it actually has legal authority (the 1862 Legal Tender Act): it has decided to replace Alexander Hamilton’s image on the $10 bill with the picture of a woman. After extensive consultations with stakeholders, the Department agreed that the “New 10” woman must be a Cherokee. The nod eventually went to Chief Wilma Mankiller. In a somewhat testy Senate oversight hearing, Treasury Secretary Jack Lew regretfully informed the runner-up, Ms. Elizabeth Warren, that under binding law individuals—male, female, or other—who wish to appear on U.S. currency must…
After a short detour responding to Mike Paulsen, I am back to elaborating on my view of the departmentalism/judicial supremacy debate. As I noted in my last post, the basic question turns on whether the executive or Congress must follow judicial precedents.
What might obligate the executive or Congress to follow judicial precedents? One starts, of course, with the text of the Constitution. The judicial power extends only to “cases” and “controversies.” Therefore, in the absence of anything else, a judicial decision cannot bind other than as to the judgment. The judgment decides the case; the precedent is about possible future cases that have not arisen. This is part of the core of the case for departmentalism.