The Supreme Court vs. the Constitution (Addendum)

I keep wanting to devote my time to activities other than my blog, but questions keep nagging at me, and question beget the search for answers, and once the research is done it behooves one to publish.  And so here we go again!

In Gerald Walpin’s book "The Supreme Court vs. the Constitution" at page 21, Walpin asserts:

“We start that analysis by making clear that the Constitution did delegate to the Supreme Court the duty to decide whether actions taken by legislatures and governmental executives are constitutional.”

But did it?

That was a question that immediately raised itself in my mind upon reading it. To be sure that power is unquestioned today. But that doesn’t make the assertion quoted above true. As one who studies American history assiduously, I recalled how unimportant the Court was considered to be in much of our history.

I remembered for instance that the Court had not received its own home until 1936. That until then, while the President lived and worked in the White House, and Congress had its own great chambers in the Capitol, the Court occupied various spaces in the United States Capitol building. See here. It simply was not considered important.

I remembered that the generally accepted wisdom was that there was no recognition of this power until it was asserted by Chief Justice Marshall in MARBURY v. MADISON, 5 U.S. 137 (1803) and then after asserting the power the court did not exercise it. In fact when the court handed down its infamous Dred Scott v. Sandford, 60 U.S. 393 (1857) decision that was the first time the Court had actually exercised that power, or to put it another way, the court had not attempted to assert that power for some 70 years.

This history, plus various reading of American history, which suggested that George Washington considered it his duty to judge constitutionality and that this would be the basis for most vetoes and other indications led me to the conclusion that this power was not intended to be given by the Constitution to the Court.

But as always, I wanted to confirm my impression, and so I went to the Federalist Papers, that extensive collection of essays written primarily by Hamilton and Madison as part of their successful attempt to sell the States on the merits of the Constitution. I expected to find corroboration that Walpin was wrong on that point as well.

Well, as I have always said, facts first. The facts showed me to be wrong. At the very least it was the opinion expressed in the Federalist Papers that that power had been given and had been intended to be given to the Court. Walpin was right on this point.

However, the founders assumed that the court would be held in check by the threat of impeachment if they overstepped. Yet in the history of the Court only one Justice has ever been impeached and none have ever been removed. See here.

For those who like to go to the original sources and want to read the relevent portions of the Federalist Papers, I refer them to here.

The point, however,  is that on this issue, my initial impression was wrong, and Walpin was right.

The Supreme Court vs. the Constitution (Discussion)

At the end of my last post entitled "The Supreme Court vs. the Constitution" I stated: “Comments on the above are welcome and will be responded to, but will not be published or posted. However, the discussion that followed has been so interesting and informative that I do want to share it with you.

So here goes...

Robert Malchman, Esq. of Brooklyn, NY was brief in his remarks. He wrote:

I believe you have the better of the argument, and the errors are quite stunning.  Even in his rebuttal, Mr. Walpin gets Griswold flat wrong.  That case had nothing to do with people being secure in their homes; it was an appeal of petitioners' criminal convictions for selling birth control devices.  Searches and homes, and the Fourth Amendment were irrelevant.  The Court instead found a right to marital privacy, which included the purchase of contraceptives.

As is my wont, I was not equally brief. My response is below:

Yes, I was surprised that he had such a poor defense. It wasn’t just Griswold, The case he cited to support his Declaration of Independence argument, as you can see from the quote, says just the opposite. And how anybody can talk about religion in the public square and totally ignore the 1st amendment is beyond me.

I was surprised because Walpin has always been rather brilliant. At CCNY where we went to school together he was President of the Student Council and I think an editor on one of the newspapers. He took on the President of the college and made him back down. He then went to Yale where he became Editor in Chief of the Law Review. He clerked for two federal judges and then joined the US Attorney’s office, where he was in charge of the prosecution of Roy Cohen, Sen. McCarthy’s sidekick.  He then joined the Rosenman firm where he soon made partner and became the head of its 65 person litigation department. After Walpin retired Bush II appointed him as Inspector General of the Corporation for National and Community Service See here. Obama fired him.

Regardless of the virtue of his Tea Party positions, I would have expected his book to be on more solid ground and his debate with me to be more lucid. Surely his briefs in his law practice must have been argued with much greater skill.

I also noted that he resorted to an attack on his critic rather than relying on the merits of the argument, saying:

"I thank Mr. Scheller for his candor in conceding that, before he read my book, he had already decided that he would not agree with its conclusions. While I will not spend my time responding to each nit-pick that those who read my book (with a closed mind) claim to find…”

The other comment came from Leonard Levenson, Esq. of Manhattan, NY. He wrote:

I have read your review of Walpin's book, his rebuttal and your sur-rebuttal.  Without going into specifics, it seems clear that Supreme Court decisions turn a blind eye to the doctrine of Stare Decisis.  The court does so for 2 reasons:  First, it is an institution respected and admired by the vast majority of the people.  I believe the court receives a favorable rating of 78% of the country; a  remarkable percentage in these days of political division and the obvious politicizing of the Court.  Compare this with the favorable rating of 18% for congress and 44% for the presidency. Because of this respect and prestige they are able to make an imprint upon our life based primarily on the Social and Economic views of the justices. 

 
Secondly, Stare Decisis has limited importance where the Court under discussion is the court of last resort. I suspect that the Court from its inception was a political institution.  It increased its political nature as its prestige increased.   

      

The Supreme Court in the 1930's, in combating Roosevelt and the New Deal measures was acting from a social, economic and political point of view; certainly not from a judicial.  The court members were mostly appointed by the Harding, Coolidge Hoover presidencies and were largely chosen from the empowered elements of our society.  They mirrored the thinking of the 20's just as the Warren Court mirrored the thinking of the 60's (despite the fact that Warren was a Republican and voted to intern the Japanese during WWII). 

     
For the reasons stated, it seems that Walpin's message misses the point, completely.  Simply stated, I believe each Supreme Court justice interprets the constitution more with an eye to his social philosophy and political tone of the times that by a strict adherence to the intention of the founders or the idea of Stare Decisis. 

          

As an aside I did not research the appointment history of the Supreme Court justices of the 30's.  Knowing you excellent reasoning ability, your thoroughness in research and enjoyment of the intellectual battle, I tremble when I cite facts to prove a point to you.

Prompting my very lengthy annotated reply:

You are correct about my " thoroughness in research” because I believe in facts first and then opinions, as opposed to the current trend toward opinions first, and we will invent facts to suit the opinions, which was very much in evidence in Walpin’s very poor defense of his views.

So let me begin by correcting your comment, "First, it is an institution respected and admired by the vast majority of the people.  I believe the court receives a favorable rating of 78% of the country;”

In fact the Court like the rest of our governmental institutions is held in low esteem. Your “facts” are very much out of date. 

Allow me to quote from the Rasmussen Reports as of September 26, 2013: 

"Just 26% of all voters think the Supreme Court is doing a good or excellent job, down from 28% in June. Just as many (26%) rate the Supreme Court poorly, but that's down, too, from June’s all-time high of 30%”. See here.

I think that was a major factor in Justice Roberts deciding to break with his Right Wing colleagues, and uphold Obamacare on the basis of a valid tax, though not on the Commerce Clause, by which, I believe, he hoped to keep his agenda of striking down liberal laws by restricting the Commerce Clause, while improving the standing of the court. It didn’t work. The Court’s reputation continued to decline, as it infuriated the Right, while doing nothing for the views of the Middle or the Left.

The Court, I believe, was in very high esteem after the Nixon fiasco, where the country felt the court had saved our Constitutional system.

Now let me address your next comment, namely, "The Supreme Court (members) in the 1930’s ... " were mostly appointed by the Harding, Coolidge, and Hoover Presidencies and were largely chosen from the empowered elements of our society. 

This is correct! That court consisted of Charles E. Hughes, Owen J. Roberts, Benjamin N. Cardoza appointed by Hoover, Willis Van Devanter appointed by Taft, George Sutherland and Pierce Butler appointed by Harding, James C. McReynolds appointed by McKinley, Harlan Fisk Stone appointed by Coolidge, and Louis D. Brandeis, appointed  by Wilson.

Thus only one Justice, Louis D. Brandeis was appointed by a Democrat, Wilson. But that should come as no surprise to anyone, since Republicans held the Presidency for 12 years, similarly to the 12 years of Republican rule in the White House during the Reagan/ Bush years and the 20 out of 28 years if you count the Reagan to Obama years, where we had Republicans in the White House continuously, with the break of Clinton for 8 years.

I assume that in raising the question of who appointed  the Supreme Court Justices you assume that this is a predictor of how they will vote. But that has not been true through most of our history, and is a relatively recent phenomenon.  As I point out above 8 of the 9 Justices were appointed by Republicans, which one might assume would mean that the votes striking down New Deal legislation would be 8 to 1, but that was not the case.

Most decisions were five-to-four with only four Justices consistently voting to strike down New Deal legislation, and the fifth vote coming from various other members. See here. Also here and here.

Just when appointments became predictors of how a Justice would vote is something I have not researched, but I suspect it started with Nixon’s southern strategy when he made two nominations of outspoken racist Southerners G. Harrold Carswell and Clement Haynsworth for the vacancy, but the Senate rejected them. I suspect that from that time on, Presidents made nomination not on the basis of qualifications, but on carefully vetted political and judicial philosophies. 

You say: Stare Decisis has limited importance where the Court under discussion is the court of last resort. This is an important point and I think that what this whole discussion leads to a conclusion that Walpin, you and I might be able to agree on. The Court is too powerful!

But that has long been a view and various proposals to reduce the Court’s power have been proposed. After the Court struck down the New Deal legislation, "Public anti judicial sentiment intensified; many critics questioned the constitutionality of the concept of judicial review itself. As a result of this reaction, several constitutional amendments were introduced into Congress in 1936, including one that would require a two-thirds vote of the Court whenever an act of Congress was declared unconstitutional; another that would permit Congress to revalidate federal laws previously declared unconstitutional by repassing them with a two-thirds vote of both houses, and even one that would abolish altogether the Court's power to declare federal laws unconstitutional." But they went nowhere.

However, Roosevelt’s court packing plan, which was denounced by many even in his own party, seemed to have the desired effect, causing one of the Justices to change his votes to validate New Deal legislation, resulting in the famous slogan: “The switch in time that saved nine”. See here.

But with life expectancy short Roosevelt was able to replace all nine Justices with his own choices by 1941. See here.

We talk about equal branches of government. But to quote George Orwell "Some are more equal than others.” Congress is balanced off by having two branches and subject to a veto by the President and by the Supreme Court. The President can be checked by Congress’ refusal to pass the legislation he desires and by the Supreme Court, but the Court can only be over-ruled by an amendment to the Constitution that needs 2/3 of both Houses and 3/4 of state legislatures, an almost impossible task, and the power of the Court has been enhanced by the longevity of life expectancy and the tendency of Presidents to choose Justices who are young, thus extending their philosophy long after another President or Presidents take office. It is unlikely that Obama will be able to change the philosophical nature of the court, since the only Justice likely to retire (or die) during Obama’s remaining years is Justice Ginsburg, whose replacement by Obama will not change the balance.

But you fall into the Walpin trap when you talk about "strict adherence to the intention of the founders”. That, of course is the concept of “Originalism”, which I denounce in my response to Walpin. For many reason, including the one set out in the Preface of the book co-authored by Robert Bork entitled LOCATING THE BOUNDARIES: THE SCOPE OF CONGRESS'S POWER TO REGULATECOMMERCE to which I refer in my post, that is a concept that has zero merit. Aside from the reasons mentioned in this book, the founders intentions have been radically altered by the 27 amendments to the Constitution, and to go by what their intentions were, is to ignore all these amendments. Let us remember, that the founders intended that slavery be part of our institutions, so that if we go by their intent, we must ignore the 13th, 14th, and 15th amendments, and accept the juridical maintenance of slavery.

Furthermore Justice Scalia, along with Thomas and Kennedy, have rejected legislative history as a guide to interpretation. See here at p.182 and what is a reference to a founder’s intent, but the use of legislative history. Legislative history on a document many times amended, is doubly absurd.

But I think you also fall also into the fallacy of equating both progressive interpretation of the Constitution with those who are interested in protecting, to quote from your comment, "the empowered elements of our society”. To understand that we have to look at how the 14th amendment has been abused. This amendment was intended to empower the newly freed slaves. Section 1 provides:

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So whom did the Supreme Court choose to protect with this amendment in its earliest interpretation. The newly freed men? No! It was "the empowered elements of our society”. The Supreme Court in its first interpretation of the amendment in the The Slaughter-House Cases, 83 U.S. 36 (1873), chose to protect the rights of the "Butchers' Benevolent Association’ and set in motion the use of the amendment to thwart all social and labor legislation. Was that the intent of the authors of the amendment? Clearly, NO! But that is the  point of all this Originalism. It is insincere and phony and is never used when it doesn’t bring about the right result.

On the other hand to use the language in a manner that is appropriate to a modern understanding of its language, is the only approach that makes any sense. What “cruel and unusual" punishment was in the 18th century clearly is not what it means in the 21^st century.

Finally, Levenson had some concluding observations:

I agree with you that in the past Supreme Court Appointees have often surprised and disappointed the President appointing them.  I suspect that this is true with regard to Earl Warren, Cardoza, Brandeis, Stone and others.  I think you are also right about recent appointees who seem to remain faithful to their economic, political and social philosophies more so than those of the past. 

 What I did find interesting and what surprised me was your comments about efforts to limit the power of the court to declare laws unconstitutional. I was under the impression that Roosevelt's court packing was the only effort to combat the courts powers to declare a law unconstitutional.  On reflection, such ideas have merit. 

 Requiring more than a simple majority of the justices to overturn a law has the virtue of removing political considerations from their decisions except in the rare situation of a court almost totally appointed by Presidents of a single party.  With regard to treating Court decisions as a judicial veto, which could be overridden, I think this would complicate an already overburdened legislative process.