Harvard lawprof Nico Bowie submitted written testimony to the Presidential Commission on SCOTUS, which was theoretically created to address issues arising from the three justices appointed by the last president that gave rise to fear and outrage that the Supreme Court now had a conservative wing of political hacks. Or to pacify the outraged by creating a committee that would spend a lot of time murdering words and ultimately do nothing, if you’re just a wee bit cynical.
Bowie argues that the Supreme Court is anti-democratic, which, of course, is correct. But his argument is that it should be democratic.
I will focus on two arguments for reforming the Supreme Court, both of which object to the antidemocratic nature of judicial review. First, as a matter of historical practice, the Court has wielded an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status. Second, as a matter of political theory, the Court’s exercise of judicial review undermines the value that distinguishes democracy as an ideal form of government: its pursuit of political equality. Both arguments compete with counterarguments that judicial review is necessary to preserve the political
equality of so-called discrete and insular minorities. But even accepting that the political equality of all Americans should be protected, the justification for judicial review is not persuasive as a matter of practice or theory.
Not being a Harvard Law School prawf, I disagreed with an obvious retort.
The Supreme Court is meant to be an undemocratic institution, which is the only way in which it could protect the minority from the tyranny of the majority.
But it’s one thing to say that Supreme Court nominating opportunities that arise in the normal course of a justice’s life cycle can’t be helped, and another given what Mitch McConnell did to Merrick Garland and says he’ll do again to Biden’s nominee, should Biden get one and McConnell be able to pull it off.
While Bowie’s contention is that the Supreme Court should use its authority to promote what he believes to be societal goods, like “eliminat[ing] hierarchies of race, wealth, and status,” as if it were another legislative branch, but with fewer votes needed to “reimagine” the law, there is a more serious question about whether the Supreme Court should reflect a more balanced perspective of the nation over which it rules.
Has the Supreme Court become too conservative as a product of McConnell’s shenanigans and the last president’s fortuitous opportunity to nominate three justices? Even if the justices do their best to be principled in their holdings, there will always remain latitude for jurisprudential bias to influence their approach to cases, issues, the law and the Constitution. When that perspective is tilted too far one way or another, is the Supreme Court the apolitical institution it aspires to be?
For the same reasons Bowie’s argument for democratizing the Court undermines whatever legitimacy the public perceives in its authority, is it wrong to want a Court that reflects the broader views of the nation rather than chalk up a win for the conservatives? Just as no fair person wants the Demand Justice vision of justices who are so irreparably prejudiced that they can be counted on to rule for one side, is not similarly unseemly to have a court dominated by justices from the other side?
*Tuesday Talk rules apply.
How does saying, “the court should be more democratic” not imply that the justices are politically biased, when the fact is, and has been shown over and over again, that a justice who knows what their job requires understands that they can’t allow their politics to influence their decision?
I think someones projections are showing…or just another classic case of “bu, bu, but they’re NOT LIKE MEEEE!!” ?
There is a bias in interpretive jurisprudential philosophy. When I was in law school, the prevailing view of constitutional interpretation was that it was a “living Constitution,” meant to change (albeit slowly) with shifting public sentiment. Now, other schools of interpretation (originalism and textualism) are dominant. Is there a right and wrong way to interpret law? Is one method superior to another or is there at least some merit to each and just different approaches?
OK. I was seeing it as party politics bias, rather than ‘bias in interpretive jurisprudential philosophy’.
It’s way out of my wheelhouse, but i think the method that is superior would show itself by how well it has worked historically.
When it comes to new methods, I see it being similar to engineering, test the hell out of it before going out and wrecking shit.
…and thank you Judge Kopf, your comment made me less stupid. Not an easy task 🙂
The “living Constitution” interpretation seems to be just another hack to get around the complete inability of the legislative branch to function properly. To match “shifting public sentiment”, they should be able to pass uncontroversial constitutional amendments. Incoherent but popular decisions like Roe shouldn’t need to exist if Congress could get off its ass to pass laws. The courts should be a check on legislative and executive power, not a maid that cleans up after their messes.
There isn’t one right way to interpret the law, but there are certainly many wrong ways. The rote formalism of the Lochner era on some matters is one wrong way, and so is some of Justice Douglas’s most cynical, outlandish, and results-oriented jurisprudence a la “trees have standing” or his in chambers order to halt the Cambodia bombing; a solid chunk of his later opinions boiled down to “it’s the law because I am on the Supreme Court and you’re not”.
SHG,
The strawman–that judicial review exists only to protect insular minorities–is wrong and I dare say dangerous, for among other reasons, because the strawman ignores other virtues of judicial review. Judicial review largely exists (with a nod to also protecting minorities) for far more important purposes. It is worth remembering in this context that judicial review (judicial reasoning) properly understood is by necessity and eons of practice backward looking (precedent) and therefore inherently “conservative.”
First, judicial review serves as a brake on both national political branches such that neither branch strays too far from the past and a rough equanimity is forced upon them. Judicial review therefore has an important part to play in mediating the machinations of the national political branches.
Second, and perhaps because his brain is made of straw, the strawman also forgets that judicial review is necessary to establish some relative order between the national and state governments. Don’t mess with Texas (except when allowed)!
In short, the Court was never intended to be democratic. When its comes to the validity of judicial review, we should follow the path laid down by Chief Justice John Marshall and not an assistant professor from Harvard.
All the best.
RGK
Your point that a jurisprudence grounded in precedent is inherently conservative is very important and too often missed. If we stray from the past, it’s only after a great deal of deliberation and then taking one baby step at a time. This provides us with the stability to know what the law allows us to do and act and plan accordingly. Without stability, we would have social chaos (even more than we have no?), and incremental change allows for both stability as well as the ability to reverse course should a shift not turn out as well as we thought it would.
Chesterton’s Fence.
This is nonsense wrapped up in the trappings of academia. Let’s just do away with the Supremes and let the circuit courts rule until we do away with them and let the Judge Kopfs rule until we do away with them. I understand that order might seem backwards constitutionally, but there wouldn’t be any courts capable of crying foul so who cares?
The author and our host note we don’t need a super legislature anyway. And the one we have is working just fine as it is I guess. Or maybe our whole republic isn’t democratic enough and what we really need is more elections or public positions chosen by lot. On that note, could you imagine the insanity of choosing justices by popular vote? Could we do that and retain the charade of senate confirmation somehow? We deserve all the beer and circuses we can get at this point.
The law is formalistic and conservative by design. I would have Judge Kopf wear a powdered wig in addition to the otherwise ridiculous black dress just to have another reminder of how old the tradition of appointing people to referee disputes based on rules that are mostly written down and mostly binding is for the laity.
Sure, having a group of life appointed olds decide our collective fates from time to time is unsettling. Until we can eat them without having to feel bad about it, might as well put them to work. The changes the author proposes are best left to thought experiments while appropriately mellowed.
Some judges in NY are elected. It can be “unbecoming,” even though it’s highly constrained.
One of the unspoken problems with any democratic choice is that you might find out that you’re not the majority, whereupon you get a very severe case of radiculopathy.
We aren’t a democracy, so I don’t get why we feel the need to elect judges at all. The whole idea of judicial elections and campaigning makes me sick even when it’s constrained. This isn’t a good topic to think about during lunch time. I’d also be upset that I’m advocating an anti-democratic position, but I’m done pretending that our republic is anything other than what it is. The rule of law is more important to me than half-assed democracy in a two party representative republic. So the author really lost me at his premise that more democracy across the board is a good thing. It isn’t and I hate myself for saying so.
Guffaw. If only the court was genuinely conservative. You recently wrote about the democratization of law and at the time I quietly wondered what the laity would think if they knew how quickly the robed ones and legislators will line up to bend over for an extravagantly wealthy industrialist who needs safe harbor to continue raping the environment for profit. The whole damn system is out of order.
Even an extravagantly wealthy industrialist gets to win sometimes, Jake. That’s the law.
“sometimes”
Double-guffaw.
All judges in Texas are elected, so it’s as democratic as can be. And we end up with some real clowns. Sharon Keller is an elected judge, very democratic.
Anything that makes the Supreme Court more like our legislative branch is a big nah from me. They may not seem like much sometimes but they’re the only thing we’ve got left that approximates adult behavior and judgement.
I’ve long been surprised that Killer Keller gets re-elected, even though she’s not bad on 1st A issues. I remember a while back when the Appellate Twitter womxn did a thread honoring all women judges for no other reason than the fact that they were female, and when Killer Keller’s name came up, I inquired in my most polite cis-heteronormative voice whether they had any concern about what these women did on the bench, beyond just being women in robes, and pointed out that Keller might not be the sort of jurist to admire. They were not amused by my mansplainin’.
I guess the Harvard professor is ok with the idea that gay marriage shouldn’t be legal nationally, since the amendment to the Cali constitution at issue was voted into place democratically.
Brave of a HLS prof, really.
Let’s go full democratic. Put all trials, hearings, etc on the internet and let the public vote like it was some reality TV show. Harvard professors might be surprised at how many yahoo’s there are in the middle of the country who do not think like Harvard professors.
This reminds me of Bill Buckley’s comment that he’d rather be ruled by the first 400 names in the Boston phone book than by the Harvard faculty.
Well, if we did that OJ and what’s her name would be in prison. You know, the woman in Florida who ended up with a dead daughter and she liked to party and they overcharged her so she was acquitted. At the time it was monstrously important, but I’ve forgotten her name.
Probably the Ramseys would be there too, despite what they probably didn’t do. Well not Patsy because she’s gone. But that rich father of hers would be getting what he’s got coming. Nancy Grace thought they did it, so good enough for me.
This is how trials were conducted in ancient Athens; not coincidentally, it’s also how Socrates was done in.