Supreme Court defies Congress

 

Supreme Court defies Congress

Judicial scope needs limits

 

Gordon L. Weil

The real American Revolution was the Constitution, not the War for Independence.

The republican form of government was revolutionary.  Though the U.S. wasn’t history’s first democracy, there was nothing else like it.  Not wanting an all-powerful monarch, the Framers divided the government into three balanced branches, each with checks on the others.  It was a clean break with the British system.

All right, you already knew that.  The news is that it’s not working.

In Britain, Parliament has complete authority to say what the law is.  It can enact laws that are considered to make up the British constitution.  It’s often said that the U.K. does not have a written constitution.  That’s not correct; the constitution is made up of specific laws that govern the country.  For example, the U.K. has a Bill of Rights.

The courts there can interpret and apply the laws and set precedents, but they cannot declare unconstitutional a law passed by Parliament.  Courts accept laws as being constitutional; they may be changed by an Act of Parliament.

The American Constitution does not give the Supreme Court the power to declare unconstitutional laws passed by Congress.  In 1803, the Court itself ruled that it had such power and its ruling has always been accepted.  However, the Constitution gives Congress the authority to pass a law amending or even eliminating that power.

If the Supreme Court finds a law unconstitutional, it effectively repeals the law.  This is an obvious departure from the British system, and gives the Court the last word in government.  While the Court supposedly judges laws based on constitutional or legal principles, it may make political judgments, dress them up as legal, and overrule the president and Congress.

That just happened.  The Court nullified one of the historically most important federal laws, relying on the political judgment of a majority composed of six justices.

In 1965, bipartisan congressional majorities overwhelmingly passed the Voting Rights Act.   While the Fifteenth Amendment had given African Americans, most formerly slaves, the right to vote, many state laws continue to make their voting impossible.   A century after the end of the Civil War, the VRA gave the federal government the tools to make that right real.

The Supreme Court ruled that the VRA was a lawful way to apply the Fifteenth Amendment, assuring access by Black to voting.  The VRA has been amended five times, most recently in 2006, to expand its coverage and effectiveness.

But, in two rulings a majority of the Court, under Chief Justice John Roberts, has stripped the VRA of virtually all its powers.  The Court’s reasoning has been that the law discriminates in favor of racial minorities, which is not allowed by the Constitution, and must be ended when, in its judgment, special treatment is no longer needed.

In its first ruling, issued in 2013, the Court ended federal government supervision of elections where racial bias existed, because it found that such prejudice had been largely eliminated.  This action was like deciding the police were no longer needed, because they had suppressed crime.  It patted itself on the back for ending discrimination.

Just seven years after Congress extended federal supervision, the Court had repealed it.  The ink was barely dry on the ruling, when some states began removing Blacks from voting access.  The Court could readily see its judgment was wrong.  It didn’t.

Where the effect of state laws caused discrimination against Black voters, the VRA said they should be overturned.  But last week, the Court majority decided that the state laws must openly intend to discriminate.   It had ruled that gerrymandering districts for political purposes was constitutional, so state legislators have only to avoid mentioning race.

Louisiana, the state involved in the case, moved promptly to eliminate at least one congressional district represented by an African American.   The likely result is there will be fewer minority members of Congress.  The Court selectively ignored the obvious in favor of its opinion of how well the VRA had worked.

The judgment on whether the VRA was still needed is clearly political, based on nothing more than the opinions and ideology of six unelected people who are empowered to overrule legislation voted and signed six times by presidents of both parties.  This is too much judicial power.

The Court’s powers should be brought back into line with a balanced government.

The Court could be enlarged to assure a wider range of views.  As I have previously noted, the Republicans have “packed” the Court, so the Democrats could “unpack” it.   A mechanism exists for creating temporary slots on the Court, allowing more justices to be added.

Or Congress could decide to create a hybrid between today’s Court control and the British system, leaving the ultimate decision on constitutionality to be made by an elected Congress.

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.