MARSTONALIA

May 12, 2003

Comments

Brett Marston informs us that Aerosmith’s Steven Tyler* has received an honorary doctorate from Berklee** College of Music.

He also has some interesting posts on the nature of the US judiciary. In this post, he argues that the independent regulatory agencies such as the Federal Reserve Board are likely to be better caretakers than the Article III Courts, since the former tend to be more non-partisan than the latter:

Reasonable people who care about the law can disagree on what it requires. These disagreements track — imperfectly, but nonetheless in reasonably predictable fashion — broader partisan differences. Perhaps parties pick up on the judicial differences, perhaps judges pick up on partisan differences. But however it works causally, the differences are there and they do matter. Given that fact — something that probably the framers did not really believe was true — it makes sense to engage in explicit ideological balancing to the extent possible. That’s what has happened in the design of independent regulatory agencies, and that’s probably what should happen in the design of any new procedure — if one is needed — to nominate federal judges.

While I disagreee on the matter of the filibuster, this is an interesting point and a good argument. While I have a strong preference for Antonin Scalia-type judges, not because I think they will create policy outcomes I like (they often don’t) but because I prefer defererence to the Framers and to legislatures–there are reasonable people with a radically different view of the roles of judges. Indeed, since the US system is ususual in combining issues of law and equity into the same body, strict construction is a very difficult standard to maintain. Marston explores this theme in a later post:

I happen to believe that, as an empirical matter, there are multiple sensible approaches to constitutional interpretation. And for the life of me I can’t figure out how you could claim that something like “fidelity to the original understanding” explains either all the good cases in American history or even all the cases that Scalia and Thomas have signed off on (such as Bush v. Gore, just to pick an example totally at random). At the very least I can’t see how it is reasonable or even sensible to claim that the only people who deserve to be on the federal bench are people who take an originalist approach to constitutional interpretation. Because I’m skeptical here, I can’t help but be worried about the inflluence of originalists, especially if I think again about Cass Sunstein’s point about group polarization: if it is even slightly reasonable to believe that alternate approaches to constitutional interpretation exist, then it would be imperative, as a self-corrective measure if nothing else, for originalists to focus on the looming problem of group polarization among originalists on the bench.

Skipping the Bush v. Gore case to avoid sidetracking, it is certainly true that picking only constitutional literalists for the bench would, given their concentration within conservative circles, tend to create a certain ideological mindset in the judiciary as a whole. But I disagree that it would mean the wholescale imposition of conservative thought by judicial fiat. By definition, a constitutionalist court would be quite deferential to legislatures. And, indeed, while a constitutionalist court would not issue a decision like Roe v. Wade, neither would it strike down a state law that made most abortions legal. (Although it might strike down a similar Federal one on the basis Congress lacks the authority to legislate on such matters.)

Further, while I believe in strict constructionist judges, I would not say this is a constitutional litmus test. A Democrat president should be able to appoint judges of his or her choosing as well, even if they bring a different philosophy. Assuming they are well qualified and respected, judges of any mainstream ideology should be confirmed by the Senate. One could argue against the confirmation of the Lani Guineir types, or a conservative judge that had a history of activism. But these cases would be inordinately rare given the screening process.

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*Not to be confused with Steven Taylor, who has an actual doctorate of political science from UT-Austin, shorter hair, and less money.

**Not to be confused with UC-Berkley, of which I had previously heard.

2 responses to “MARSTONALIA”

Brett

May 13, 2003 at 1:41 pm

Thanks for the comments, Jim! Bush v. Gore is only a distraction if you think that all reasonable interpretations of the decision show that it is consistent with “strict constructionism” or “fidelity to original intent.” You can either accept or reject any claims with respect to BvG as persuasive or unpersuasive, but it’s hard to dismiss them as entirely beyond of the pale with respect to reasonable interpretation.

That’s mostly what I’m getting at here. Referring to “original intent,” or even, to pick a phrase that you like (and that I have increasing sympathy with, given the ideological orientation of the courts these days!), deference to legislatures, doesn’t do all that much work, because the idea behind Article III courts is that judges will have independence and a wide range of discretion, subject only to imperfect and crude methods of discipline by the executive, congress, or the public.

At least with independent regulatory agencies, we have an explicit marker — partisanship — that can be used to balance the membership on the agencies. With courts, the debate enters a weird world of doublespeak, where judges decide “according to law” and that is supposed to be sufficient information. And if someone responded to a hypothetical partisan tilt on the Fed, for example, by saying that the members have been chosen because they’ll do “what’s best for the economy,” the public would immediately see how empty such a response really is.
James Joyner

May 13, 2003 at 1:53 pm

Brett,

I agree BvG is relevant to the debate; just didn’t want to get back on a rehash of it in the midst of the post. I personally think the case, like Brown v. BOE, was correctly decided but incorrectly framed. It seemed to me a much better way to have approached it was to cite the late 1800s federal law after the last Electoral College fiasco that said 1)legislatures make the rules, period, and 2) no rules could be changed beyond a 30 days (or whatever it was) before an election. The Supreme’s could have ruled that the actions of the Florida SC were clearly in contravention of that law and not gotten into the odd equal protection claims. I think the latter have merit, but the reasoning given was a stretch.

I actually disagree about what the role of Article III courts should be. I agree that in practice they do those things, but contend that those powers are illegitimate. I think Marbury v Madison was a much more strained ruling than Bush v. Gore! But, even aside from that, courts should rule acts of the elected branches unconstitutional only when they clearly are.

Clearly, there is nothing in the Constitution creating a right to privacy, let alone abortion, to cite the hottest examples. The legislature is perfectly free to create those rights, and states are likewise free to enshrine them in their own constitutions. But it’s beyond the scope of the judiciary to make them up.

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