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.