Joan Biskupic has an analysis (noting editors often apply headlines) entitled "John Roberts can’t do anything about Clarence Thomas."
I would argue that his end of the year report for the judiciary "did" something; it increased the idea that the "need for independence" requires "a sound structure for self-governance" [noting Congress did help by setting forth certain administrative procedures for them to use]. In other words, "trust us."
This gave Thomas more power. One court analyst basically also argues Thomas is "untouchable," providing more details on his power and influence. Meanwhile, (after a press releasing saying he would be out of the hospital probably after a few days; he was not) we have vague ideas about his health, including as he took part remotely this week.
Justice Breyer agrees his friend (they often were seen as chummy when they sat next to other on the bench) should basically be untouchable. We should not assume the "perception of political influence among justices" and "structural alteration" based on that is not only ill-advised, it threatens the rule of law.
When we hear the word "myth," what often comes to mind is things like battles of Greek and Roman gods or something like Adam and Eve. We sometimes use it to speak of "patriotic myths" or the like. This flows into my usage here. The term doesn't mean mere fantasy. Myths can often tell us some real things about how things originated or work. One definition:
a usually traditional story of ostensibly historical events that serves to unfold part of the world view of a people or explain a practice, belief, or natural phenomenon.
Let us focus on the specific "book," which received some ridicule while people were pushing Breyer to resign. The "book" is actually a form of a lecture (originally a presentation in France entitled "The Supreme Court: Power and Counter-Power," but you know COVID, so he gave it at Harvard). In his Author's Note, he says it is his personal and professional resposne to the "recent disagreements over the nature and future of the Court."
I think he should have avoided that angle. The book has some interesting aspects (if even there somewhat questionable at times). When he directly cites ongoing controversies, it is a real problem. Logically enough, since they are now his colleagues, Breyer doesn't address the controversies of the last three nominations. [This was published in 2021.] But, that is simply playing unfair. They are a basic aspect of the dispute.
This is a major problem, but Breyer (and critics flagged this) is selective even beyond that. The importance of "rule of law" is readily accepted. We can also, though it is somewhat more controversial, grant the importance of judicial review. But, there are a range of ways to handle this. You do not need life tenure. We can have constitutional courts with less jurisdiction. We can have larger courts. We can have greater means of overturning constitutional rulings. And, so forth. These are not cited AT ALL.
Breyer after all clearly supporters what is known as a "legislative veto" to handle the necessities of the modern administrative state. Given his druthers, he would allow it, and he would not deem it as a threat to separation of powers. Ditto line item veto and a greater role for the federal government to regulate what is now seen as threats to federalism.
Many reforms similarly do not merely think judges are "politicians in robes." They accept the rule of law and so forth. But, history has shown that the nomination process has been tainted. That judges cannot just be trusted to self-restrain. He cites things like "clarity," "deliberation," and "just do the job." How about the shadow docket, already much more of a thing as he gave the lecture even more now? How about handing down orders that executions can go on without comment. Clarity?
[Update: A case is "DIGGED" if it is dismissed as improvidentially granted. This generally comes up if some technical issue arises that makes it not useful to decide reason it was taken.
So, if a case is taken to settle a a certain question and it turns out the facts of the case means the case isn't appropriate to deal with it, SCOTUS might DIG a case. This sometimes comes up at oral argument.
A basic concern, such as with the federal government lawsuit in the SB8 case, is when SCOTUS does say why they decided the matter was DIG worthy. I by chance found an old case that was DIGGED, and though it's tricky since two justices dissented (leading Harlan to as well), it shows how you can in a brief statement explain a DIG.
If "clarity" is the answer, you should to that. Breyer, however, doesn't face up to real life here so comes off as a naive idiot.]
The lecture begins with the important of the "perception that the state is just" as a means of obedience of the law. The other options are fear and hope of rewards and punishments. He notes the Supreme Court has less power to do the last two (the proverbial absence of purse or sword). So, it needs to act justly. But, not only that. There has to be that "perception" of it. And, the controversy and push for reform threatens that.
I respect the need of the courts to act correctly and cautiously. Breyer has provided various advice in that department, including compromise and careful deliberation. He has also promoted each citizen to have a role, including education, public participation, and practice (cooperation and compromise being key here; he doesn't note it, but consider the need of unanimity on a jury).
This is all fine. And, Breyer argues the reach of judicial power is limited. Statutory and agency decisions can be handled in a range of ways. Constitutional opinions also are limited (and one should aim to make it so), including leaving other ways to advance the same policy. To give one example, U.S. v. Lopez struck down a federal law involving guns near schools, but left open a means to do much the same thing in a different way.
This sort of thing is somewhat exaggerated. First, it takes time to do these things, and presidents -- unlike justices -- do not have life tenure. Second, it can be hard to pass legislative fixes, especially with new party control and filibusters. Third, and this goes also to his examples where the Supreme Court does not simply in a "liberal" or "conservative" way matching its personnel [multiple examples were 5-4] too, there is a limit to the limits.
Breyer likes to avoid admitting that justices have different views that can match political labels, though admitting certain experiences and the like will influence judges.* At some point, this simply avoids reality. Toss in the justices failing to do the job, including the clarity and so forth Breyer promotes, we have a problem.
A valid statement is that it is not a 1:1 ratio and there tends to be swing justices and justices who judicial views for various reasons on certain issues do not overlap. People do sloppily and ignorantly miss the nuance there, surprised when Kavanaugh, let's say, seems to do something reasonable. But, the current 6-3 Court, a result of problematic political moves over the years (a bit of "luck" for the conservatives in 2016, deaths, and electoral college/Senate issues), skewers even that to a significant extent.
Breyer cites his usual judicial moments, each with a bit of spin. Interesting how Chief Justice Marshall in Marbury "found a brilliant way out" as if he was doing some crafting politics as compared to merely applying the law. His favorite moment is obviously Brown v. Board of Education though even there he grants the courts carefully handled racial equality to protect court power in the face of opposition. When does that become "political"?
The "powerless opinion" involving the Cherokees is cited. This skips over an important detail -- Georgia repealed the law in question, not bringing the opinion to a head. And, the "trail of tears" was not done by raw force alone. The federal government found a means to sign a treaty with the Cherokees, or at least enough of them for it to look legitimate.
Critics will point to the various conservative and justice resistant aspects of the history of the Supreme Court as a whole. Breyer can provide the high points and grant there were some low lights, suggesting really though they were unfortunate exceptions. Clearly, as a whole, he thinks the Court played a positive role [as a judge and justice for over thirty years, one is not surprised]. I don't know the appropriate answer to that general question.
If Breyer wants "trust" in the Supreme Court, the institution has to do a better job. And, trust is not something that only arises from self-restraint. Our system has three basic branches and public institutions that in various ways check and balance each other. To do so, we need full knowledge and clarity of what is happening. This book does not provide that.
The system also provides means for each part to limit the other. Breyer might want to ignore that "political influence" very well has skewered the Court so much that we need to fix it. I think "political influence among the justices" does exist too. But, you know, that isn't even necessary to warrant change here.
If a "justice" is put on the Court because it is deemed inappropriate to even grant a compromise choice a hearing and then another is shoved on the Court as the voting for Biden is taking place -- in rank violation of the so-called "principle" used before, the trust in the Court is RIGHTLY going to be reduced. If you are concerned about that, doing nothing but putting trust in the Court -- a trust that continues not to be shown to be worth much -- is a bullshit, ostrich approach that warrants the scorn many have for it.
I personally think expansion is warranted since the Court already was basically "packed" just like you do not need a formal filibuster to do that to a nominee. Prof. Victoria Nourse, who would provide an intelligent, challenging approach to statutory interpretation and other issues, was filibustered. There was not a Senate-wide vote to block her nomination vote, but "blue slips" and other means will do it is all the same. And, as a result, the ideological balance of the Seventh Circuit changed.
There are also other reforms necessary and some might be useful. They are not covered at all in this account though Breyer has voiced acceptance (at least at times) for something like term limits. These things will not threaten the rule of law or judicial review as a whole. If anything, as changes in federalism, voting, and so on, it might improve it.
After all, in one of his books, Breyer specifically addresses the role of international law. He has regularly respected the practices of other countries as a means to provide insights. Well, they do things differently than us regarding constitutional review without the "rule of law" being threatened. I also recommend his book Active Liberty, which provides insights on his judicial philosophy.
This "book" is more problematic. It has some good stuff in it. The appeal for citizen engagement is very important. But, it also has too much myth, and a rather skewered version at that. I'm ready for his replacement.
===
* The one opinion that was handed down this week is right in his wheelhouse, since it split 8-1, with Kagan writing in the majority and Breyer with a solo dissent. Just goes to show the justices do not split by usual ideological lines, right? Plus, the matter involves a technical jurisdiction question that seems safely non-partisan.
Breyer uses the opinion to state his vision though as is often the case, one wonders how much it really determined the result:
When interpreting a statute, it is often helpful to consider not simply the statute’s literal words, but also the statute’s purposes and the likely consequences of our interpretation. Otherwise, we risk adopting an interpretation that, even if consistent with text, creates unnecessary complexity and confusion. That, I fear, is what the majority’s interpretation here will do. I consequently dissent.
I think this is true as a whole and the Court's recent trend in support of "textualism" in practice can be a "just so" story where the justices split on what the text means. Ultimately, other things will factor in.
Breyer is correct that justices use a variety of techniques. His honesty about the choices made make it depressing he cannot not be fully honest. But, we do lie to ourselves as much as we lie to others. No April Fools there.
Kagan takes some potshots at the dissent, including the "dissent’s vaunted practical “advantages” also mostly concern avoiding those diversity issues" and the "dissent’s gloomy predictions." Hey! Breyer says he is an optimist.
No comments:
Post a Comment
Thanks for your .02!