A shot across the Court’s bow
From Mark Tushnet:
Here’s a thought in the event that there is a Biden appointed commission on court reform. What about a Joint Resolution on Judicial Power: “No court shall hold a federal statute unconstitutional unless it concludes that the statute is manifestly unconstitutional.”
Tushnet discusses this suggestion and some limitations here.
I am somewhat sympathetic to this idea. I certainly agree with the substantive idea that underlies it; we have way too much judicial review of social and economic legislation in this country. Tushnet’s proposal is not at all a cure for conservative judicial activism by the Roberts Court, but it sends the right message: “We’re on to you. We know what you’re doing: using specious legal reasoning to reach results you favor on ideological grounds. Knock it off.” It’s not a substitute for enlarging the Court – nothing is – but it is a useful shot across the Court’s bow.
Similar tactics could be used to pressure the Court in other ways. For example “When addressing statutory ambiguity and potential drafting errors, the Court shall interpret statutes to achieve their public regarding purposes. Rulings that force Congress to rewrite existing legislation shall be strongly disfavored.” The Administrative Procedure Act could be amended to formalize Chevron deference.
Congress should also tell (or remind) the Court that it must defer to Congressional findings of fact unless they are clearly erroneous or there is reason to suspect an illegitimate (racist, sexist, etc.) motivation. In Shelby County, Roberts opined that the preclearance provisions of the Voting Rights Act were no longer necessary to prevent racially motivated election law “reforms”. His arrogant personal fact finding was contradicted by the Congressional record and immediately exposed as nonsense when the decision was handed down. Congress could explicitly call out Roberts for substitution of his “factual” judgment for that of Congress when it attempts to reinstate the Voting Rights Act.
While potentially useful, these examples also illustrate why Court enlargement is the only reliable method for reining in the Roberts Court. As Tushnet notes, his proposal would probably be declared unconstitutional by the Court, a problem that plagues almost all reform proposals other than enlarging the Court (term limits, panel systems, jurisdiction stripping). More fundamentally, these examples illustrate that legal reasoning about the constitution, the administrative state, and complex legislation is way too open-ended and discretionary to be substantially hemmed in with words. There is no substitute for good motives, but motives cannot be legislated. We need better Justices.
https://www.texasmonthly.com/politics/lyndon-johnson-on-the-record/
Lyndon Johnson on the Record
Seven months after he left the White House, the former president sat down with his aides to work on his memoir. On only one occasion did he allow a tape recorder to run, and he spoke with surprising candor about the 1960 campaign, the Kennedys, the assassination, and Vietnam. The transcript of that session has never been published—until now…
…The Warren Report
In this passage Johnson is not quite leveling with his writers. From the day of Kennedy’s assassination, he had privately suspected that JFK was murdered by a conspiracy. In a post-presidential interview with CBS, he told Walter Cronkite that he had never been convinced that a lone gunman killed Kennedy. Immediately after the taping, he and his staff successfully pushed CBS to delete those comments from the broadcast version for reasons of “national security.” In my first volume on the secret Johnson tapes, Taking Charge,19 LBJ is told by FBI director J. Edgar Hoover the morning after Kennedy’s murder that the FBI had seen the suspected assassin, Lee Harvey Oswald, at the Soviet embassy in Mexico City two months earlier. Worried that this news might leak out, poison American self-confidence, and cause Americans to demand military retaliation against Moscow that might cause World War III, LBJ was eager to appoint an investigatory panel that would offer an answer to the question of who killed Kennedy. He was also eager to derail demands for investigations of the crime by the FBI or at state and local levels. He was pleased when the Warren Report concluded that the culprit was a lone gunman, acting alone.
I had no question about the Warren Report. I am no student of it. All I know is this: I was no intimate of Justice Warren. I didn’t spend ten minutes with him in my life. But I concluded that this was something that Hoover and the Massachusetts courts and the Texas courts could not handle. We had to seek the ultimate to do the possible. And who is the ultimate in this country from the standpoint of judiciousness and fairness and the personification of justice? I thought it had to be Earl Warren, chief justice of the United States.
I knew it was bad for the court to get involved.20 And Warren knew it best of all, and he was vigorously opposed to it. I called him in [to the Oval Office]. Before he came, I was told that Warren had said he wouldn’t do it. He was constitutionally opposed. He thought the president should be informed of that. Early in my life I was told it was doing the impossible that makes you different. I was convinced this had to be done. I had to bring the nation through this thing. When Warren came in and sat down, I said, “I know what you’re going to tell me, but there is one thing no one else has said to you. In World War I, when your country was threatened—not as much as now—you put that rifle butt on your shoulder. I don’t care who sends me a message. When this country is threatened with division and the president of the United States says you are the only man who can save it, you won’t say no, will you?” He said, “No, Sir.” I had great respect for Warren. And from that moment on I was a partisan of his.
I shudder to think what churches I would have burned and what little babies I would have eaten if I hadn’t appointed the Warren Commission. If there was no Warren Commission, we21 would have been as dead as slavery….
Bob Dylan – The Times They Are A-Changin’ (Audio)
“There is no substitute for good motives, but motives cannot be legislated. We need better Justices.”
You’ve got that right. It is not possible to write enough laws to assure responsibility and selflessness.
The conservative movement has changed the perception from that of a council of elders (as in ages of wisdom) in which it was a high honor to sit as such as one understood the respect they had earned.
Yes, idealistic but it is ideals that guide people’s activities.
Happy Halloween Eve Eve Eve. If you hear the rustling of chains in the darkness it is just the ghost of the SCOTUS decision on Dred Scott v. Sandford.
Right to petition and vote for a popular vote referendum to overturn a SCOTUS decision is one check and balance that was omitted from the US Constitution. Need to fix that.