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01/15/2020

Eric Segall on Supreme Court Overreaching
Michael Ramsey

At Dorf on Law, Eric Segall:  Supreme Overreaching: The Justices Should Return Gun Control, Affirmative Action, and Abortion to the States.  From the introduction:

President Trump successfully made the Supreme Court an important election year issue in 2016, and he is likely to do so again in 2020. This strategy works because for a long time the Justices have improperly placed themselves in the middle of many of our most important political, social, and cultural disputes. But elections shouldn’t be about judges, and courts shouldn’t be this important. 

In a recent essay for Dissent magazine, Yale Professor Samuel Moyn wrote an excellent piece criticizing what he calls our “juristocracy.” According to Moyn, judicial review

has been a disaster for the democratic premise that the people themselves choose their own arrangements, shunting decision-making to a council of elders supposedly possessed of unique wisdom. And in exchange for its antidemocratic premises, juristocracy has not delivered the goods that popular interests and needs require. Only democratic politics can.

Why do we give unelected, life-tenured judges the important power to overturn state and federal laws? The original and best justification for judicial review is that our written Constitution forecloses some choices elected leaders may make, and we need an independent branch of government to enforce those limitations. This system makes sense where the Constitution’s rules are reasonably clear. However, the Supreme Court has for a long time taken it upon itself to invalidate legislation even when constitutional text is imprecise, its original meaning very much in doubt, and reasonable people can disagree over whether the Constitution should foreclose specific voter decisions.

And in conclusion:

If Chief Justice John Roberts truly wants the American people to view judges in general and the Supreme Court in particular as non-political, as he claims, a first and necessary step would be for him to convince at least four of his brethren that the Court needs to step away from all three of these divisive issues as none of them violate clear constitutional text or well-accepted historical accounts of that text.

The Supreme Court has played much too large a role in our system of government for far too long. The Justices should let politics run its course absent clear constitutional mistakes by elected leaders. As Professor Moyn pointed out, “Juristocracy or democracy? It is an easy call.” A good start to restoring robust democracy would be to for the Court to extricate itself from the politics of abortion, gun control, and affirmative action.

Though it's not my first choice, perhaps a compromise of this sort is needed to defuse the "confirmation wars."  Still, I'm not sure why it's two conservative concessions for one liberal concession.  Maybe throw in returning the death penalty to the states?

But the real practical problem with this version of judicial restraint is the overwhelming temptation to prefer judicial restraint for rights one doesn't like and judicial engagement for rights one likes.  To his great credit, Professor Segall doesn't give in to this temptation.  I don't see, though, why he thinks Justices would not.

I think any solution would have to be a structural one -- perhaps require 7 of 9 votes to invalidate a statute or executive action (thus approximating the vote of the states required to amend the Constitution).  If you're not willing to think about that reform, you're not really in favor of judicial restraint.  (But, I'm not sure I am).