The last word on the law

 

The last word on the law

Courts or legislatures?

Gordon L. Weil

Who should decide if a law is constitutional?  The courts or the people?

This question does not exist only in an academic ivory tower.  As people increasingly see courts as partisan, it is a real issue.   A Maine case last week focused on it.

The American Constitution is silent on the issue, but the U.S. Supreme Court lost little time in asserting its authority.   It declared that it alone could conduct “judicial review” – deciding if laws are constitutional.  The highest state courts have done the same.

This ruling was authored by Chief Justice John Marshall, a member of the Federalist Party, which was dying.  By taking broad powers for the Court, he would be empowered to use his long tenure to support the Federalist view as a check on the rising Jeffersonian democracy.   Thus, from the outset, the Court was political.

While court decisions are supposedly objective and nonpartisan, it’s obvious that judges’ opinions often reflect their personal philosophy or the positions of the political parties that put them on the bench.  Pledges of neutrality may assure judicial independence, but not objectivity. 

Because judges have known ideological or political leanings, the courts inevitably take on a legislative role.  When they define what the law is, they may substitute their judgment for the lawmakers’ intent and become lawmakers themselves.

Court views may change over time, as when the Supreme Court reversed its earlier pro-abortion decision in Roe v. Wade, causing the public to see the judiciary as essentially legislative and not reliably objective.  As judicial rulings have become more controversial and apparently partisan, public support for the courts has been declining.

If courts become more like legislatures, should legislative bodies representing the people, not the judges, be responsible for deciding on constitutionality?   Two differing answers have come from two states, Maine and Alaska.

They both focused on  ranked choice voting, which modifies how votes are counted in multi-candidate elections, potentially eliminating a candidate winning simply by being “first past the post.”  In 2016, a Maine referendum launched it for federal offices and for state elections of governor, members of the House and senators. 

But the state Supreme Court ruled that the Maine Constitution requirement for election by a “plurality” prevented using RCV for state elections.  It cited the state’s troubled history involving a disputed election that had almost led to armed conflict as the reason for the requirement for a simple plurality.  The Legislature repealed the referendum result.  In 2018, a second Maine referendum approved RCV for federal offices and state primaries, but not for state elections.   

Two years later, Alaska voters narrowly approved RCV for both federal and state elections.  In 2022, the Alaska Supreme Court ruled that the Alaska Constitution, requiring “the greatest number of votes” to be elected, allows for RCV.   It attacked the earlier Maine decision for failing to take good election policy into account.  As in Maine, Alaska voters decided a second time on RCV, retaining it by a margin of 664 votes out of 340,110.

In a ruling last week, the Maine justices unanimously rejected Alaska’s unusually harsh criticism, and explained the detailed vote counting procedures laid out in the Maine Constitution, requirements that are absent in Alaska.

In Alaska, the will of the voters, expressed by a slim majority in a referendum, dictated the Court’s determination of what the State Constitution meant.  The Court concluded that RCV is constitutional, based on its political judgment of the “State’s interests in allowing voters to express more nuanced preferences through their votes….”

In Maine, RCV proponents asked the Court also to follow referendum results and its successful use in the state’s elections for federal offices.  The justices would not agree, finding that the Constitution’s definition of “vote” in state elections means the ballot cast by the voter that must be counted in their municipality, which precludes RCV.

In the U.S., the highest court, federal or state, usually decides on the constitutionality of laws.  In Britain, without a written constitution, the Supreme Court accepts Acts of Parliament as being constitutional.   In the RCV rulings, Maine had retained its traditional judicial review authority, while Alaska deferred to a referendum, a legislative act, leaning toward the British model.

Because American courts, with unelected membership, are increasingly seen as legislative bodies, adopting the British system of allowing the elected legislature to decide on constitutionality might seem to be a realistic alternative.  But there’s no chance of dropping judicial review. 

A hybrid solution could allow court decisions on constitutionality to be overridden by a legislative body, voting by a super majority vote within a fixed period after the court’s ruling.  Marshall’s concept of judicial review is not included in the U.S. Constitution, so this change could be made by law.

Supreme Court conservatives become America's legislature

 

Gordon L. Weil

The U.S. Supreme Court seeks a new record: to issue a ruling rivaling the infamous 1857 Dred Scott decision that said that Blacks could not be U.S. citizens. 

That decision was a cause of the Civil War, which led to constitutional changes intended to give African Americans equality with all other Americans.  In 1965, one hundred years after the end of the Civil War, the Voting Rights Act was adopted to finally ensure equality in access to voting. 

Because some states, mostly in the former Confederate South, had adopted laws and practices keeping Blacks from voting, Congress empowered the federal government to approve state voting practices to ensure they were not discriminatory and required states to design congressional districts that would not dilute minority voting.

The Supreme Court, controlled by a conservative majority of six justices, decided that federal supervision of states to prevent discriminatory districting had run its course and should end.  Virtually instantly, some states acted to reduce the possibility of Blacks being elected.

Now, the same Court majority seems ready to decide that the anti-discrimination requirement imposed on states is also outmoded.  Ignoring the effects of its earlier decision, it is poised to hollow out what remains of the historic Voting Rights Act.  If not racist, such a decision would reveal a remarkable indifference to American history.

The media has chosen to focus on the effect on the Democratic Party, supported by most Black voters, forecasting it will lose seats in Congress.  At a time when the Democrats might gain control of the House, the Court may assure the continuation of a GOP House, the subservient backer of the powerful president the Court has created.

But the focus on elections misses the setback to the equal treatment of African Americans, leaving them once again victims of the after effects of the nation’s “original sin” – slavery.  The pending decision could be deeply divisive, just as was Dred Scott.  Of course, there will be no armed conflict, but national unity could be severely tested. 

With Congress having fallen in line behind an increasingly powerful president, the Court has become the U.S. legislature.  Six conservatives have assumed the power to amend what may be one of the most important laws ever adopted in the nation’s history.

The Supreme Court’s power is not derived solely from the Constitution, but from an understanding among the early Federalists that the Court should have the authority, in the words of the key 1803 judicial decision, to “say what the law is.”  This is judicial review, with the last word on the law held by the Court.

This power differs from the British system, where the last word on the law lies with Parliament and the courts cannot reverse its decisions.

Judicial review should be changed.  Proposals to depart from the long-used approach might be written off as impractical or unrealistic, but the Trump regime has dangerously abused the concept.  Thinking outside the box Trump is creating has become critically important.

The most obvious change, but also the most unlikely, would be to amend Article III of the Constitution to remove this power from the Court.

But there are other measures available to Congress that are less extreme and easier to achieve.  This column has explored them.  They would require only an act of Congress with the assent of the president.

The Court could be enlarged to allow the president to appoint justices creating a majority more responsive to the will of Congress and to the people.  Abraham Lincoln did it, and Franklin D. Roosevelt’s proposal to pack the Court brought “a switch in time that saved nine.”

Short of enlargement, the number of justices on the Court could be temporarily increased.  Congress now creates temporary slots on the federal appeals and district courts.   They are filled by lifetime appointees who later move into the permanent positions as they are vacated.  This could be done at the Supreme Court to allow its steady renewal.

Temporary slots are often created because the burden of the caseload has grown.  The Supreme Court handles many fewer cases than previously, so perhaps it needs some help.  The use of temporary slots would allow for a smoother evolution from a Court dominated by the appointees of one president to those selected by a successor.

Even without expanding the Court, the Constitution gives Congress control over its jurisdiction. It can limit the Court’s jurisdiction over certain issues.  The Court has accepted such legal limits.  A restriction could be extended to include congressional districting cases.

Another method to limit the Court’s power would be a hybrid of the American and British systems.  The Court could still decide on constitutionality, but could be overridden by a required supermajority procedural vote, like the Senate filibuster, or two congressional votes separated by a designated delay period. 

Any of these changes may require a strong Democratic majority controlling Congress and a favorable president.  If the Supreme Court chooses to gut the Voting Rights Act, the Democrats could make Court reform a central part of their platform.