NO-LIMIT POKER, AND NO ONE'S FOLDING:

Kennedy is unknown by public but key in Supreme Court (KnoxNews, 9/2/2003)

By 1992, in a challenge to Pennsylvania's abortion restrictions, observers thought Roe and abortion rights were dead. But Kennedy stunned court-watchers when he, Reagan appointee O'Connor and David Souter (an appointee of the first President Bush) issued a joint opinion in Planned Parenthood v. Casey declaring Roe v. Wade settled law.

To reverse course risked "surrender(ing) to political pressure," the three wrote. "To overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the court's legitimacy beyond any serious question."

"Sometimes you don't know if you're Caesar crossing the Rubicon or Captain Queeg cutting your own tow line," Kennedy told a reporter with California Lawyer magazine minutes before the decision was handed down....

"But there's no going back: Roe v. Wade is inviolable for all time," said Emory University legal historian David Garrow, author of "Liberty and Sexuality."

Garrow's statement is wishful thinking, but Kennedy's is truth: and the jury is still out over whether Kennedy will be remembered as Caesar or Queeg. All the Supreme Court has done so far is raise the stakes. Before 1973, abortion was argued in the 50 states and the District of Columbia, fine compromises were possible, and the stakes being debated in any one locale were relatively small. The Supreme Court entered the game and raised the stakes: the issue would be decided by the Court for the whole nation, all-or-nothing. Then in 1992, they doubled down: not only the abortion question, but the very legitimacy of the Supreme Court was at stake. But in trading the Court's legitimacy for the "settlement" of a policy question, the Court may yet squander its legitimacy and lose its policy.

Alabama Justice Roy Moore's civil disobedience over the Establishment Clause may be a harbinger of rebellions to come. The reason is that the Constitution itself (Article VI) requires that all government officers swear an oath acknowledging that their first allegience is to the Constitution and the law, not to judicial rulings or the Supreme Court. So when a Supreme Court ruling contradicts the Constitution, it places upon executive officers a stark and unpalatable choice: enforce the unconstitutional ruling and violate one's oath; or risk anarchy through conflict with the judiciary. In imposing such quandaries the Court necessarily calls into question its own legitimacy. For men of high conscience, intent on upholding their oaths of office, must reject the Court's rulings.

Where will that leave the nation? Remembering, and rueing that it did not take to heart, Judge Learned Hand's wise observation:

If an independent judiciary seeks to fill [Constitutional imprecisions] from its own bosom, in the end it will cease to be independent. And its independence will be well lost, for that bosom is not ample enough for the hopes and fears of all sorts and conditions of men, nor will its answers be theirs; it must be content to stand aside from these fateful battles....

[T]he price of [judicial independence], I insist, is that [judges] should not have the last word in those basic conflicts of "right and wrong-between whose endless jar justice resides."... [T]his much I think I do know - that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press apart an advantage to its bitter end ...

Learned Hand, The Spirit of Liberty (Alfred A. Knopf, 1953), pp. 162-65.

MORE: JUDICIAL REVIEW, EXECUTIVE REVIEW, AND LEGISLATIVE REVIEW

Based on Carl's comment, I think I should make my understanding of the Constitutional principles here more plain.

Article VI makes two key statements: The supremacy clause ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land") asserts that written documents, not the opinions or edicts of men, shall be paramount. The oaths clause ("The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution") asserts that every officer -- executive, legislative, and judicial -- must have his first loyalty to the written Constitution, not to any other source of authority.

These clauses can be fulfilled if and only if officers from all three branches are vested with the powers of review -- call them powers of "judicial review," "executive review," and "legislative review" -- such that, in performance of their Constitutional duties, every officer is obliged to understand and interpret the Constitution and, when some other officer of government orders him to do something that violates the Constitution, must follow the Constitution, not the order.

If a majority of the Supreme Court converted to Nazism and issued an edict that all Jews in America be executed, I would hope -- we all would hope -- that executive officers would refuse to enforce the unconstitutional edict. This hypothetical, I think, establishes that we all believe in executive review; our disagreement, if any, is over the scope and extent of powers of executive review, not the existence of such powers.

It seems to have been little noted that the rationale by which Chief Justice John Marshall, in his superb opinion in Marbury v. Madison, established the necessity of judicial review applies with equal force to the concepts of executive review and legislative review. Let me quote from Marshall's opinion:

The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts....

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

Judges must perform their Constitutional duty to decide cases in accord with their oath to uphold the Constitution and the Law. But simply change the word "judicial deparment" to "executive department", and we have the principle of executive review. If executive officers are to obey their oath to support the Constitution, then they must expound and interpret the Constitution. This is of the very essence of executive duty. It is, indeed, an executive duty defined in the Constitution itself.

Let me quote one other passage from Marshall's opinion:

By the constitution of the United States, the President is invested with certain important political powers ... [W]hatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.

Judges, no doubt, may not like the notion that the executive branch can refuse to enforce their rulings. But as Marshall notes, the President is invested with this important power; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists no judicial power to control that discretion. For the power to check abuses of executive discretion are allotted by the Constitution to Congress (through its powers of appropriation, legislation,and impeachment) and to the people (through the vote).

Posted by pjaminet at September 4, 2003 9:03 PM