The Authority of the Court and the Peril of Politics

From The Wall Street Journal:

In the United Kingdom, there is a tradition of printing 100-page books—booklets, really—from lectures given by notable judges and lawyers. The Hamlyn Lecture series, for example, has featured such distinguished talks as Lord Denning’s “Freedom Under the Law” (1949), Professor Arthur Goodhart’s “English Law and the Moral Law” (1953) and Dean Erwin Griswold’s “Law and Lawyers in the United States” (1964). The primers are collectible, memorable and quotable.

Now Harvard University Press has perhaps embarked on a similar plan for Harvard Law School’s annual Scalia Lecture series, instituted in 2013. This year the program turned to Justice Stephen Breyer, who has thought deeply about judicial power, the rule of law and the role of the judiciary in the American polity. Perhaps these three subjects are in the nature of a trinity: three that make up one. In any event, their position in the U.S., when compared to the rest of the world, has been enviably secure. Yet insiders know that, here as elsewhere, the institution is perennially precarious.

In April Justice Breyer spoke from a lectern to a Zoom audience, and now his speech is preserved in book form. Those wishing to know Justice Breyer’s thoughts can choose either to read the book or to watch the two-hour speech on YouTube. You’d feel edified in doing either.

Quoting Cicero, Justice Breyer argues that the only way to ensure obedience to the Supreme Court’s pronouncements is to convince people that the Court deserves obedience because itsdecisions are just. That means an observer must assess not the justness of each individual decision, but the justness of the Court’s decisions collectively and in general.

In support of this thesis, Justice Breyer gives a mini-lecture on American constitutional history and on the struggle, when interpreting the Constitution, for judicial supremacy. He explains how Chief Justice John Marshall, in Marbury v. Madison (1803), decided the case in a most unexpected fashion—pleasing President Thomas Jefferson with the specific result but only by establishing the Court’s ability to declare acts of Congress unconstitutional. That all but guaranteed acceptance of the Court’s power, at least in that case, while establishing the doctrine of judicial review.

Nearly 30 years later, when the Supreme Court declared that the State of Georgia had no rightful control over Cherokee lands there—lands where gold had been discovered—President Andrew Jackson and the state of Georgia both ignored the decision. There was no enforcement. As a result, the Cherokee Nation was driven to Oklahoma on the infamous Trail of Tears.

After that outrage, adherence to the principle of judicial review was, reassuringly, mostly re-established. Yet even as late as the 1950s, with Brown v. Board of Education, it wasn’t at all clear whether the Court’s decision would be enforced by the Executive Branch. Some today may have forgotten that, to enforce Brown, President Eisenhower sent 1,000 parachutists from the 101st Airborne Division into Arkansas. Central High in Little Rock would no longer be white-only. In taking that bold action, Eisenhower ignored the advice of James Byrnes, the South Carolina governor who had once briefly served on the Supreme Court, before returning to the Roosevelt administration to aid the war effort. At the time of Brown, Byrnes advocated taking the Jacksonian stance of doing nothing to enforce the Court’s decree. The U.S., in other words, came perilously close to a 20th-century trail of tears—one that would have resulted from reducing the Brown decision to empty words on a piece of paper.

. . . .

If the events of the past year have taught us anything, it’s that the established institutions of the United States are more fragile than almost any of us had previously thought. We used to believe, for example, that strongman coups were exclusively in the domain of Third World countries. Now we know that the potential is also here on our shores.

Meanwhile, judicial institutions are under attack once again. We can’t say “under attack as never before,” because Justice Breyer shows us that such attacks are a persistent problem. Although he abjures speaking directly about the current Court-packing proposals, the author wants to “ensure that those who debate these proposals also consider an important institutional point, namely how a proposed change would affect the rule of law itself.” His voice is a powerful one, and the brevity of this book, together with its readability, should ensure its lasting influence. Like anyone else, Washington leaders can absorb its message in a single evening.

. . . .

The central question is whether courts should interpret legal documents by giving them a fair reading of what they denoted at the time of adoption, or whether courts can interpret those texts according to their broad purposes (not getting too caught up in grammar and historical dictionaries) and even the desirability of results. As Justice Breyer puts it: “Some judges place predominant weight upon text and precedent; others place greater weight on purposes and consequences.” As the popular mind conceives it, conservatives do the former, and liberals do the latter. And the latter approach, according to Scalia, leads inevitably to appointing judges who will vote for outcomes they personally favor. Hence the process becomes more politicized the further judges stray from the text.

Link to the rest at The Wall Street Journal (This should be a free link, but, if it doesn’t work, PG apologizes for the paywall, but hasn’t figured out a way around it.)

The United States Constitution includes only a broad overview of the US court system. Here is all that document says about courts:

Article III.

Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Unlike any other public office mentioned in the Constitution, federal judges at all levels serve until they voluntarily retire or die.

The specific language is:

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The “good Behavior” language means that federal judges can be removed from office only via an impeachment process.

The House of Representatives impeaches a judge and the Senate holds a trial to determine whether removal is justified. A simple majority vote in the House is required to impeach and a two-thirds majority is required in the Senate to convict the judge of the charges laid in the impeachment and remove the judge from office.

Only one Supreme Court justice has ever been impeached, Samuel Chase, who was appointed an Associate Justice in 1788 by George Washington.

President Thomas Jefferson was upset at several federal judges who had held some of his legislative initiatives to be unconstitutional. Jefferson and his supporters in the House and Senate repealed the Judiciary Act of 1801, under which federal courts subordinate to the Supreme Court were established, thus abolishing the federal courts and, effectively terminating their lifetime appointments as provided in Article III of the Constitution.

Thereafter, Chase severely and publicly criticized this action. For this, he was impeached by the House of Representatives in 1803. Following a trial in the Senate, several votes were taken, but the required 2/3 majority voting for Chase to be removed from the bench could not be attained. Chase continued to serve on the Supreme Court until his death in 1811.

See Wikipedia for more information about Chase. This Wikipedia article includes lots of links to third-party information regarding Chase and his trial.

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