CONCERNY RANDY BARNETT’S EXCELLENT ARTICLE in the September issue (The Wages of Crying ‘Restraint,’ TAS, September 2012), a few observations on judicial review and tenure: In Marbury v. Madison (1803), the United States Supreme Court established its authority to review judicially and invalidate statutes it believed to be unconstitutional.
Let’s look at the record:
In Dred Scott v. Sandford (1857), the Supreme Court issued a ruling that made compromise impossible and was, therefore, the immediate cause of the Civil War, which cost 600,000 lives.
In Brown v. Board of Education (1954), the Court ruled that equality rather than excellence is the paramount requirement of public education and thereby ruined it. Virtually no public figure has since chosen to use public education for his or her child.
In National Federation of Independent Business v. Sebelius (2012), the Court upheld Congress’ power to enact most provisions of the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act (“Obamacare”), including a requirement for most Americans to have health insurance by 2014. The destruction of health care for all but the wealthiest (who can get it overseas) looms.
Could we have done worse if Marbury v. Madison had been decided the other way, e.g., to preclude judicial review? But, gentle reader, supposing that you find value in judicial review notwithstanding the Supreme Court’s train-wreck record, should the justices be appointed for life rather than elected for terms? Would not election moderate the abuses of judicial review?
Appointment and life tenure are in place in order to ensure fierce independence from the pressures of politics. However, the Court repeatedly bows to political pressures anyway. The Court famously changed direction when frightened by the prospect of FDR’s Court-packing plan. The event was summed up in the slogan, “A switch in time saves nine.”
And we need look no further than the Obamacare decision and Chief Justice Roberts. Fearing disapproval by the left-wing elite, the chief justice found Obamacare to be a constitutional tax. In doing so, he negated the very reason for, and justification of, his privileged lifetime position.
The bottom line is this: Judicial review is at least as destructive as beneficial. But, if retained, its evils can be limited by requiring that the Supreme Court justices be elected to finite terms of office. Since the Court bows supinely to political pressures, those pressures should come from the electorate, not sources to which the justices privately pander.
Peter S. Latham
Randy Barnett replies:
MR. LATHAM IS RIGHT about one thing: The Supreme Court has a long history of failure. But that failure, more often than not, is a failure to stand up to Congress. Justices often bend to the political winds simply because they are human and they share the temperament of the times. But imposing term limits on justices and appointing them more frequently will only make this worse.
Our system is premised on an elected president nominating and an elected Senate confirming all justices. The problem is that for years, Republican presidents have been barking up the wrong tree.
They have deliberately sought “judicial conservatives” who will “defer” to the executive and legislative branches. This gave us John Roberts’ vote in NFIB. Instead, we need a president to select justices who not only say they are committed to the original meaning of the Constitution (which John Roberts never did), but whose track records also show that they have the character to stand up to public pressure and to actually follow it.
For better or worse, under our system this is what elections are for. Thankfully, for the first time in my lifetime, we are witnessing the growth of a popular political movement whose core concern is to restore the lost Constitution. But the key is for conservatives and libertarians to repudiate the mantra of judicial conservatism and “restraint,” and adopt instead a constitutional conservatism that is committed first to the original meaning of the founding document, and second to judicial “engagement” rather then passivity.
As Paul Ryan likes to say: “We can do this.”
IN SPEAKING ABOUT INFLATION (“Taxes Won’t Save Us,” TAS, October 2012), Tom Bethell notes that “the Federal Reserve can buy government bonds with dollars created out of thin air.” True. Now let’s put some numbers on this fact to get a sense of the magnitude of the problem we’re facing.
The Fed purchased 61 percent of Washington’s 2011 $1.4 trillion debt. That number has jumped to about 80 percent this year. Taken together, the Fed now owns about 27 percent of the U.S. government’s debt.
This trend—the high percentage of purchases by the Fed—is apt to persist and increase in the future. Low interest rates discourage prospective buyers from the private sector. And in spite of an uptick in buying from those fleeing the euro, other major purchasers of Washington’s debt are diminishing. China’s economy is slowing down. Japan is facing a demographic crisis that will collapse its saving rate. And the biggest holder of government debt, the U.S. Social Security system, is quickly sliding from generating a yearly surplus into deficit mode.
If current trends continue, don’t be surprised when the day comes that the Fed starts to monetize diverse things like corporate bonds, mortgages, insolvent student loans, bankrupt public-sector pensions, and bonds of financially irresponsible states like California, New York, and Illinois.
And if that is not enough to give you inflationary shudders, consider this: When international banking elites get together, do you think they can somehow concoct a rationale for why it is really in the “best interest” of the U.S. to allow the PIIGS of Europe to get their snouts in our trough, too? I don’t.