I'd like to talk some about the Supreme Court this week. But first I think it's worthwhile for those of us who aren't particularly focused on the Supreme Court (and really, how many of us are), to talk a bit about the Court and its current members. These are probably things you learned about at some point in school, but like with me and anything to do with chemistry or calculus, they may have been tossed by your brain to make room for things you use more. Like 1980s song lyrics. Seriously, when the kids get to chemistry and calculus it's going to be painful. But if they would like to know the words to every Madonna song, I've got it covered.
Obligatory civics refresher:
The Supreme Court of the United States - it's the highest court in the land, it has 9 members, they have life tenure, they are nominated by the President and confirmed by the Senate (first the Senate Judiciary Committee, then the full Senate). Article III of the Constitution says (in part) -
"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 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..."
A Few Brief Notes on Constitutional Law and Current Controversies: These are meant primarily as brief summaries of/links to use about some of the concepts and terms you will hear argued by people who are talking about things being decided by the Supreme Court. I've included some of the most useful parts of the Constitution, as well as some shorthand terms people use often. I'm trying to be brief and not include too much argument, but I'm sure Mandi or one of my other lawyer friends will argue with me about anything that comes across as too biased.
- The Supreme Court pretty much gave itself Judicial Review - the ability to decide whether laws are constitutional and to strike down unconstitutional ones - during Marbury v. Madison. Pretty much everyone thinks that's a good thing. It certainly seems necessary to preserve the concept of checks and balances the Framers seemed to intend.
- A large portion of what is constitutional lawmaking by Congress is constitutional because of the Commerce Clause. Generally, this means that the legislation has a sufficient connection to interstate commerce to be allowed under Article I, Section 8, Clause 3 of the Constitution. The Commerce Clause was particularly important during the New Deal and legislation advancing civil rights. There have been recent attempts by the Court to limit the use of the Commerce Clause.
- The Bill of Rights (comprised of the first ten amendments to the Constitution) was an important part of the ratification of the Constitution. The Framers chose not to put the rights in the original document, feeling that the structure of the government was enough to protect these rights, but the Constitution probably would not have been ratified without the promise of the explicit protection of these rights.
- The Tenth Amendment reserves for States (or the people - more on that in a bit) the powers not granted to the federal government. Federalism is an important part of the conversation of the Court, but also of lawyers and lawmakers, generally. When somebody talks about federalism, they are usually talking about the balance of power between the federal government and the states. The fact is that we started out as colonies first, and that has had a lot to do with our evolution as a country. But the Constitution was not our first organizing document, and the Constitution represented a conscious movement towards centralizing power in the federal government, because the Articles of Confederation (which created the far more state-centered government that existed before the Constitution) were not working well - largely because of their purposefully weak federal government. Then there was the Civil War - which was about slavery - but one way the South argued about slavery was that individual states should have the power to decide the on issue of the legality of slavery. The Constitution makes the balance of power pretty clear - check out the Supremacy Clause - that the federal government trumps state governments. The conclusion of the Civil War underlined that. (The Federalist Society, btw, which is a conservative legal group, is not solely about the balance of power between the states and the federal government, but they tend to lean on the state side of that equation.)
- The First Amendment contains: the freedom of speech, the freedom of assembly, the freedom to exercise religion, the freedom of the press, and the prohibition from the State establishing a religion. I think that of these, the one that is least understood by the most people is the Establishment Clause. It's the clause that pretty clearly makes the people who like to proclaim America a "Christian Nation" really wrong. It is precisely because the Framers believed in freedom of religious belief that they did not want to pick one religion to establish.
- The Second Amendment says: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The commas really do confuse things, and it's not the clearest of amendments, but the "well regulated militia" part is generally glossed-over or ignored by those who oppose gun control.
- On Privacy: there is no specific "right to privacy" in the Constitution. Some people think it's self-evident that the Framers believed that there is a right to privacy. But the lack of a specific reference has led some conservatives (this is how Santorum gets to some of the places he does, for example) to believe that States can do pretty much anything they want, subject only to the limitations of the Supremacy Clause and elections. Okay, that's too broad to be clear. Say your state decides to outlaw cream in coffee (see below), or... large sodas. There are conservatives who think that states can do that, that you do not have any right to determine the content or size of your drink. There was a whole West Wing episode about this topic. But justices have struggled with this one, because some of them earnestly believe in "strict construction" (see below), and there is no place to go, strictly, for privacy. So the justices who really want to be able to cite things for their pro-privacy leanings have come up with this arduous theory about penumbra and reading between and around the lines of the First, Third, Fourth, Fifth, and Ninth Amendments. Here, see for yourself (from Justice Douglas in Griswold v. Connecticut):
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
*Note from Tenth A. on Privacy: maybe we should take a look-see at the Tenth Amendment here, too.
- On Who Is a Person: Nope, not talking about slavery. Also not talking about who can vote. In this case I'm talking about how the Court has - to me, bizarrely - decided that it's a good idea to give corporations some treatment as people. It's a long and complex discussion, but it's an active conversation in legal circles. In much the way that the whole - to me, stupid - Court decision to Equate Money with Speech is long and complex, but active (more on that in a separate post on Citizens United).
- On Equal Protection and Due Process: The Fourteenth Amendment was ratified post-Civil War (1868). It is separate from the 13th Amendment, which outlaws slavery. It was created to explicitly bring the States to heel on some important, basic rights and to provide explicit protections from the government (and it was later interpreted to incorporate many of the rights in the Bill of Rights to be applied to state action as well as federal). The two clauses in this Amendment that are used pretty much all the time in courts are the Equal Protection Clause, and the Due Process Clause (there is also a Due Process Clause in the Fifth Amendment for the federal government). Equal Protection is about laws not discriminating without good reason. The Court has developed three levels of scrutiny and tests for each - for whether the government is allowed to do the discriminating it wants to do. By discriminating, I mean here mostly dividing (treating groups of people differently from each other), though also discriminating in the bias sense, because a claim of bias is what's involved when equal protection arises. Equal Protection is one of the concepts being argued in talking about gay marriage. Due Process is mostly about the enforcement of the laws these days - about the procedures to which people are entitled while under American rule of law. And often this is about criminal procedure, but since the clause includes "property" other aspects have arisen - like regulatory takings and eminent domain (when the state takes or functionally takes your property).
- On "Strict Construction" - So in theory, there is a clear delineation between interpreting the constitution closely (not necessarily literally, but close to that, probably) and interpreting it broadly or as a living document. It's pretty clear that asserting a penumbra of rights emanating from various amendments is NOT strict construction. It's also pretty clear that legal interpretation requires some degree of latitude by its very nature - not all situations are exactly the same, so extrapolation is inevitable in legal interpretation. So the question is what kind of interpretation is a good idea, and what kind is harmful or taking improper liberties. Which leads us to...
- On "Judicial Activism" - I hate this term. I hate it because it is so inartfully applied to basically mean "things the Court does with which I disagree." There is a useful term in there somewhere, one that applies to going too far afield of precedent and existing law to substitute the will of the judiciary for the will of the legislature (which traditionally receives some deference because of its proximity to an actual vote by the people). The best current example I can come up with for a real possibility of judicial activism is the health care law up before the Court right now. I think EJ Dionne is right that if the majority in the Court delves too far into redrafting the law to fit its interpretation of what Congress would have crafted had they not been able to use a mandate, they will be guilty of judicial activism - because the legislative process is such that the end result of a large bill is filled with various and sundry compromises that were made over a period of months or years, for various and sundry reasons, and to appeal to various and sundry interests. That's something it is difficult to recreate in chambers. On the other hand, I'm not sure I buy that finding the mandate to be unconstitutional would be activist. I may feel that way because I hate the mandate. But I don't think so. The truth is that the mandate is different from the things that Congress has done in the past in a significant way. And the people we charge with determining whether that kind of thing is constitutional are the Justices on the Supreme Court. Now, if they did it for purely political reasons, because they support Republicans and oppose Democrats, that would be activist. But in a case like this it's hard to know from the outside which would be the case. I'm comfortable, on the other hand, labeling Bush v. Gore as judicial activism. A couple of the justices were arguing in a very different way than they have usually argued in the past, and a couple had close family members working for one of the campaigns, yet failed to recuse themselves (for example, in US v Virginia - the VMI case - Clarence Thomas recused himself because his son went to VMI, but in Bush v. Gore his wife worked for the Bush Campaign, yet he did not recuse himself). But Bush v. Gore is not the case that most people complain about when they talk about judicial activism. It tends to be civil rights cases and abortion cases that people cite - and those are cases where the majority rule of legislatures are the most suspect, because they are cases about minority rights.
This has gotten far longer and taken far longer than I anticipated, so the part about the current members of the Court will have to wait for tomorrow...