This post by John Reilly is again relevant with the recent 9-0 decision by the Supreme Court to allow part of President Trump's travel ban to take effect. If you believe John's analysis from 21 years ago, this is to be expected from a Court that is seeking to retain its power intact.
How to Prevent a Civil War
At this writing, one can only speculate about whether the Supreme Court will affirm the recent decisions of the Ninth and Second federal circuit courts creating a right to physician-assisted suicide. My suspicion is that the current Supreme Court will not do so, though in fact the euthanasia cases are almost inevitable extensions of its reproductive rights cases. In this as in other areas of the law dealing with civil liberties, the court has long ago stopped even trying to make sense. Its behavior now is that of a prudent sovereign, concerned primarily with maintaining its own authority. "Roe v. Wade" survived the "Casey" decision because some of the justices were afraid of the blow the court's prestige would suffer if the court reversed such a prominent precedent. The prudent thing for the court to do, when the euthanasia cases come before it, would simply be to decline to make more trouble for itself. The question would then be left for a more enlightened panel to answer correctly. There is, of course, only one answer that enlightened opinion will accept to this question.
The sickness in our system of constitutional law goes far deeper than the competence or honesty of the appointed judges. The fact is that the consensus of jurisprudential theory can no longer support the idea of constitutional law, because it accepts contemporary philosophical assumptions about the impossibility of objective truth and the indeterminacy of language. The judges and scholars who practice this form of skepticism do not seem to realize their peril. Maybe the traditional idea of a constitution is naive, and it is epistemologically impossible for a constitution to be a bill of specifics with a single correct meaning which is accessible to all competent readers. It may be merely a reflection of biblicist superstition to think that a text can stand guard over the actions of government from generation to generation. Nevertheless, these things are what the U.S. Constitution means to America. This view made it reasonable for the Marshall court in the early years of the republic to assume the power of constitutional review, despite the lack of any such authority for the Supreme Court in the constitution itself. Constitutional judicial review makes sense if the constitution is treated with the caution and ingenuity that a common law court brings to the text of a statute. Constitutional judicial review is hypocrisy if the constitution is regarded as simply a grant of unlimited power to judges, embedded in a text of contentless exhortation. In a growing number of areas of law, the latter is the state of things in the United States today.
This regime is intolerable. It rests on a fraud, on authority assumed under false pretenses, and it cannot stand for much longer. The problem is not whether particular issues, such as affirmative action or euthanasia or the separation of church and state, are being resolved correctly. The courts would be capable of error under any imaginable legal system, errors that law-abiding people would be obligated to obey for the sake of public order. The problem is that the issues are being resolved lawlessly. With each exercise of arbitrary power, the courts hemorrhage a little more legitimacy. Some decision by the Supreme Court in the not too distant future will finally snap the reins of judicial authority. The matter at issue may be euthanasia or some other question; it really does not make much difference what the issue is. The crisis is implicit in the structure of the system. It is inevitable that on some matter of ferocious public debate, the court will someday reach a decision that will not be accepted as the law of the land by the rest of the political system. We will then be faced with a threat to the rule of law and to the legitimacy of the federal government unparalleled since the overture years to the Civil War. It is not too early to consider how to prevent this threat from causing yet another national catastrophe.
Most democracies have reasonably independent judiciaries, but few if any give the courts the breadth of power enjoyed by American courts to strike down legislation which they find to be incompatible with their national constitution. Judicial review in Great Britain, for instance, is quite limited. It extends to little more than reviewing the procedural regularity with which a law is passed. In Germany, it is tightly bound to specific constitutional prohibitions. In the United States, the power is amplified by the near impossibility of amending the text of the federal constitution. Even more important, though, is the peculiar authority given to precedent, an authority called "stare decisis," in America's variant of the common law tradition. The decisions of the higher courts in the United States have a binding power over the actions of lower courts, and even on their own later decisions, that is unknown to countries with judicial systems based on Roman law. It is even extreme by the standards of other common law countries.
A country with limited judicial review can still be a "Rechtstaat," a state governed by law rather than arbitrary executive authority. Most of the nicer places in the world, in fact, manage to maintain honest police, freedom of expression and fair elections quite without a judiciary as powerful as that in the United States. Perhaps more to the point, they also manage to maintain regular constitutional government primarily through the responsible cooperation of the political branches of government. (What an odd expression "political branch of government" is: how can the federal courts be considered "nonpolitical" simply because the judges are not elected to office?) Such a system must be our model when the current regime becomes untenable. What we are looking for is the restoration of truly constitutional government, indeed of constitutional government in its specifically American form.
* * *
It would be the beginning of catastrophe if the final folly by the Supreme Court occasioned a new Constitutional Convention. Even worse would a slew of gimcrack amendments to the current constitution. The twentieth century has been the great age of constitution writing because of the proliferation of new states and the instability of the old ones. With a few exceptions, the documents have been long, unworkable, and held in deserved contempt. If you want to see what a third American Constitution might be like (after the Articles of Confederation and the present Constitution of 1787), you need look no further than the grotesque document that now governs Canada. It is as detailed and special-interest friendly as an annual appropriations bill. It also commands about as much affection. For better or worse, though I believe largely for the better, loyalty to the constitution is one of the constituent elements of American patriotism. It is the historically specific form that respect for the rule of law has taken in America. It is essential that we not try to replace the constitution, or deface it with amendments dealing with matters better left to the discretion of congress.
The text of the constitution itself has always contained the mechanism for controlling the Supreme Court. Article III, Section 2 provides, among other things, that the "judicial Power shall extend to all Cases...arising under this Constitution.." The appellate jurisdiction of the Supreme Court is established "...with such Exceptions, and under such Regulations as the Congress shall make." (Section 2 also gives the Supreme Court original jurisdiction in, roughly, cases where foreign powers are involved or a state of the United States is a party.) The text says that congress has the power to remove certain kinds of cases from the appellate jurisdiction of the Supreme Court entirely. (If congress can do that, then congress can also presumably remove the same types of cases from the jurisdiction of the lower federal courts, since otherwise you would have a situation where contradictory decisions by lower courts could never be reconciled on appeal.)
There is, of course, a literature dealing with the question of just how broad the power of congress to define the jurisdiction of the Supreme Court really is. Most scholars today would probably say that there is some constitutional minimum of jurisdiction. What discussions of this kind overlook, however, is that the opinions of scholars or of the Supreme Court itself on this matter can only be consultative. If congress and the president decide that the Supreme Court may not address a certain question, then the Supreme Court cannot. Any decision it might choose to issue would be beyond its jurisdiction because it would be unenforceable on a practical matter. Such a decision might even be refused inclusion in the Supreme Court reports by the simple mechanism of refusing to appropriate funds to disseminate decisions defined by statute to be beyond the court's purview. There might be a brief, confused period in the initial aftermath of such a decision in which district court judges issued injunctions to unresponsive federal officials to implement the Supreme Court's will. However, the outcome of such a test of power could not be in doubt.
One can easily imagine how such a new understanding of the separation of powers could degenerate into farce. Congress could start passing exceptions to the Supreme Court's jurisdiction in cases involving euthanasia, flag burning, the possession of assault rifles, free speech rights on the Internet, an interminable laundry list of passing popular enthusiasms. The courts would fall into contempt as congress simply usurped the role of forum of final appeal on all politically sensitive issues. That would be a situation of lawlessness nearly as complete as that under which we now labor.
The goal of any legislation defining the jurisdiction of the Supreme Court should not be to correct specific abuses. Rather, it must seek to define a jurisprudential theory of constitutional law under which such abuses cannot occur. (The text of Section 2 certainly suggests such an approach, since it speaks not just of "Exceptions" but also of "Regulations.") The language I am about to propose is not a masterpiece of drafting, and other changes would have to be made to various provisions of the statutes defining the jurisdiction and administration of the federal courts. For that matter, even the theory of constitutional law I seek to require is not the only possible one for the purpose. I present this model statute merely to illustrate how modest the necessary rules for the Supreme Court could be:
"Section 1. Popular Name "This Act shall be known as 'The Justice under Law Act.'
"Section. 2. Constitutional Judicial Review
"(a) General Power.
Except as provided in subsection (b), the Supreme Court shall have jurisdiction to nullify in whole or in part any provision of the laws of the United States or of any State or territory that is clearly repugnant to one or more specific provision of the Constitution of the United States.
The Supreme Court shall have no jurisdiction to nullify this Act.
"(c) Rules of Interpretation
The Supreme Court shall interpret any provision of the Constitution of the United States for the purposes of subsection (a) as narrowly as is consistent with giving force to the provision's purpose, as that purpose was understood at the time of the provision's enactment. The Court shall interpret the purpose of any such provision with reasonable regard to changes in technology, language, and the nature of economic activity since the time of the enactment of the provision.
"Section 3. Transition
(a) Reforming Prior Law
Notwithstanding any other provision of law, the Supreme Court of the United States shall grant review to cases properly before the lower courts in which:
(1) It is reasonably alleged by one of the parties that its interests have been or foreseeably will be damaged by a decision of the Court inconsistent with the interpretive requirements of section 2; and
(2) The decision complained of was reached before the effective date of this Act.
"(b) Prospective Effect
Any relief granted to a party because of the reconsideration of a point of law under this section shall be prospective only."
An important point about this statute is how little it would change things. It would leave "Brown v. The Board of Education" intact, for instance, because government-sponsored racial discrimination is smack within the Supreme Court's jurisdiction under the text of the Fourteenth Amendment. It would leave "Miranda" intact because the police warnings required by that decision are a reasonable procedure to implement rights reasonably clear from the text of the constitution. It might even leave a great deal of the law regarding separation of church and state intact, although it would almost certainly increase the ability of government to support the secular activities of religious institutions.
The definition of the court's jurisdiction would not prevent the court from developing constitutional law over time. In the common law tradition, the interpretation of any statutory text is supposed to evolve. What it would do is ensure that this evolution is organic, entelechal, that it expresses something that is really implicit in the text. This approach means that the implications of any constitutional text are limited. Organic entelechies reach maturity and then they are finished. The power of judicial review ought to incorporate this reality into the development of the provisions of the constitution. The alternative is a constitution that is not a healthy "living" document, but a cancerous one.
On the other hand, the statute proposed would also close down a very large fraction of what passes for the study of American constitutional law. Most of the rights-industry would disappear overnight. Law professors could, if it amused them, continue to speculate about the relationship of civil rights to pregnancy trimesters or whether marriage can be defined in terms of gender or whether parochial schools are a menace to the republic. However, these speculations will no longer be susceptible to enactment by judicial fiat. If the professors want them enacted, they must apply to the legislatures. I wish them luck.
* * *
What I have proposed here is an approach toward a durable solution to a crisis that has not happened yet. The more immediate problem would be the time of transition. I have assumed that the political branches of the federal government already know what they have to do when some intolerable usurpation by the Supreme Court finally forces them to act. However, the odds are that they will not know, at least not at first. The speed with which a proper response can be mounted is likely to be directly proportional to the magnitude of the court's arrogance.
Ironically, the best scenario might be for the Supreme Court to announce, in a 5 to 4 decision, that the constitution does indeed contain a right to doctor-assisted suicide. Even now, I can picture the president saying, "I don't approve of this decision, but it is the law of the land, which I am obligated to enforce." In congress, half-a-dozen constitutional amendments to overturn the proposal are introduced. Some are voted for by large majorities, none by the two-thirds needed to send the proposals to the states for ratification. "The New York Times" declares another victory for the cause of human rights. Medicare starts issuing much more rosy budget estimates in anticipation of fewer malingering old people to care for. The stock of healthcare providers goes through the roof. This is all pretty much what happened after "Roe v. Wade" was handed down, but I don't think it would work this time, not for long. The moving parts of the machinery which is implementing this particular coup are too easy to see. The fact that conscious adults will be the victims this time will give the issue a hair-raising immediacy that has been largely absent from the somewhat metaphysical debate about abortion. Thus, even if the reaction to a decision establishing a right-to-suicide got off to a slow start, it would probably build quite quickly toward a decisive response.
The same might not be true of a lawless decision on some other issue with less far-reaching consequences. If the court found, for instance, that the death penalty was unconstitutional per se, the response might not be coherent enough to provoke radical reform. After all, though it is as clear as any constitutional issue can be that the death penalty is not precluded by the constitution, still many people want it abolished on perfectly respectable moral grounds. They would raise little objection to circumventing the legislature one more time, even though they have seen how this procedure has worked against other causes of which they approve, notably the right-to-life movement. In such a case, the court's authority with regard to the other branches of government could remain intact while the legitimacy of the federal government as a whole is reduced.
The longer the current regime continues unreformed, the greater will grow the number of citizens of the United States who are persuaded that their national government is an alien institution under the control of people with alien concerns. The effectiveness of the United States for every purpose of war and peace will continue to wither. We have seen the results of similar phenomena in too many former countries in recent years to have doubts as to the stakes. Even if we avoid civil strife, we must remember that the era of catastrophe in world history is by no means over. We will pay dearly in the century to come if we are needlessly divided.
We have been stymied because we have been misled about what is essential and what is alterable in the American constitutional system. Returning the courts to the rule of law does not require amending the laws of physics, or even amending the constitution. The necessary changes are actually easily manageable. Simply making this fact known would help to defuse the situation, and might even prevent the crisis.
This article originally appeared in the July/August 1996 issue of Culture Wars magazine.
Copyright © 1996 by John J. Reilly