1. What Is the Basis for Jurisdiction-Stripping (Removing Certain Cases/Issues from the Courts)?
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1. What is the basis for “jurisdiction-stripping” (removing certain cases/issues from the courts)? 2. In what ways does the McCardle case uphold the idea of jurisdiction-stripping? What is the important limitation of jurisdiction-stripping? 3. Why is it important to read the exceptions clause in context with the rest of the Constitution?
Blinding Justices Does the Constitution allow us to scrap the judiciary? By Rod Smolla Nov. 4, 2003, Slate,
Affirmative action, abortion, the Ten Commandments, the Pledge of Allegiance, coddling criminals, protecting terrorists. Pick your poison, and somewhere, someone's arguing that this is all the work of federal judges—a godless, gay-loving, politically correct cabal conspiring to foist the liberal agenda on a pliant people. Say you are dead-set certain that federal judges from the Supreme Court on down have hijacked the Constitution, holding the country hostage. What can you do about it?
The judges seem to have you in a constitutional lock-hold. It's fourth-grade social studies run amok: The Constitution is the supreme law of the land. Whenever an ordinary law passed by Congress or a state legislature conflicts with the Constitution, the Constitution trumps. Federal judges decide what the Constitution means. And judges have lifetime tenure, provided they exhibit good behavior. You could try to impeach the bums, but that takes a two-thirds vote of the Senate, which you'll never get—look at the Bill Clinton fiasco.
What galls you the most, what really sticks a constitutional crick in your craw is that federal judges are themselves the ones who invented this system. They're the ones who came up with the idea that a judge can strike down an act of Congress—a rule that does not appear anywhere in the text of the Constitution.
And then it hits you! A brilliant, blinding insight, piercing the mind like a diamond bullet: a constitutional loophole. A loophole codified in the Constitution itself. Thus, with the singsong tremolo of a preacher reading Scripture, you intone the words of the "exceptions clause," Article III, Section 2 of the Constitution: "In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
That's the ticket! Maybe the courts control the Constitution, but Congress controls the courts. It gets better: Article III vests the judicial power "in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." So all those lower federal courts are the creatures of Congress. The judges may have tenure, but the courts don't. Congress could eliminate them all!
And so it is that a number of imaginative conservative pundits, afraid the federal courts will oppose the Ten Commandments, impose same-sex marriage, and install a pledge to one nation not-under-God, have begun floating the claim that Congress could and should abolish the jurisdiction of federal courts to hear any such cases and that we should be lobbying our congressmen to do just that. Lower courts owe their existence to Congress, they argue in op- eds across the land, and Congress thus has plenary power to limit the jurisdiction of lower federal courts as it pleases. As to the Supremes, the exceptions clause in Article III clearly instructs that the appellate jurisdiction is subject to such "exceptions" and "regulations" as Congress shall make. In theory you could use these powers to "except" the whole liberal agenda from judicial review.
Will the plan fly? The story starts with a case titled Ex parte McCardle, decided in 1868. The Supreme Court was confronted with an appeal brought by a newspaper editor from Vicksburg, Miss., named McCardle. He had been jailed by the Union Army for his editorials attacking Reconstruction legislation, on grounds that he was disturbing the peace and inciting insurrection. He filed a petition for habeas corpus challenging the legality of his confinement, and his case was ultimately appealed to the Supreme Court, under a federal statute granting the Supreme Court appellate jurisdiction over such cases. While McCardle's case was pending, however, Congress repealed the jurisdictional law McCardle had been using to support his appeal. The question then arose whether the Supreme Court could go forward and rule in McCardle's case anyway or was instead bound to dismiss the appeal for lack of jurisdiction. The Supreme Court dropped the case like a hot rock. Why? Under Article III of the Constitution, the court reasoned, it would normally have the power to hear cases involving questions of federal law, such as McCardle's. When Congress passed the original statute authorizing habeas corpus appeals, Congress was just, in effect, "confirming" this jurisdiction. Yet the court felt that Congress, having given, could taketh away. So, citing the exceptions clause, the court held that once Congress repealed the law on which McCardle's appeal had been based, the court had no choice but to leave him out in the cold.
The McCardle decision, coupled with the text of the exceptions clause, makes the argument for the legitimacy of jurisdiction-stripping seem strong. But it's not so simple. Because while Congress had cut off the specific statutory route that McCardle had used, it had not eliminated all recourse that McCardle or others like him had to the Supreme Court. Alternative routes to the court remained open, and indeed, the same year McCardle was decided, the Supreme Court entertained a habeas petition from a person named Yeager who also challenged his confinement and the legality of Reconstruction legislation. Yeager used a different federal statute than McCardle to support his appeal, and the court accepted it. McCardle thus tells us that Congress may eliminate a specific statutory path to Supreme Court review, but it does not tell us whether Congress could zero-out an entire class of cases. In other words, Congress may apply the squeeze, but perhaps not the full freeze.
It is usually unsound to interpret any one constitutional provision in isolation. The exceptions clause must coexist with many other constitutional guarantees, such as equal protection or free exercise of religion. Congress could not use its power to regulate federal court jurisdiction, for example, to declare that while the courts may hear civil rights cases, they may only hear them when they are brought by white people. Nor could Congress pass a law limiting religious free-exercise challenges to Catholics only. And Congress could not say, for example, that the Supreme Court may take cases involving abortion, but only if it rules pro-life. Beyond rights laid out in the Constitution itself, other limitations on the exceptions-clause power may also exist. Many scholars and jurists have argued that Congress may use the exceptions clause only to enact neutral jurisdiction laws, run-of-the-mill rules of procedure that regulate jurisdiction but do not attempt to control substantive outcomes. True jurisdiction laws are driven by administrative and procedural factors that properly influence policies regarding jurisdiction—issues like the size of a court's caseload or the efficiency of court procedures. When Congress, under the guise of limiting jurisdiction, tries to kick out all Pledge of Allegiance cases, however, the underlying agenda is transparently not about caseloads but results.
In setting up a regime of three co-equal branches of government, creating the classic system of checks and balances, the framers devised a constitutional version of Rock, Paper, Scissors. Each branch has its own unique strengths and its own unique weaknesses. Rock, Paper, Scissors would lose its point if we gave one of the implements a superkibosh power. And the system of checks and balances will lose its balance if one branch gets a supercheck.
The framers did not create a system of direct democracy. They created a republic and divided power. The idea of democracy is not America's great contribution to human history. America's great contribution is the idea of rights. The power of independent judges to "call 'em as they see 'em" is a cornerstone of this system. There is nothing wrong with intense debate over the nature of our constitutional rights. Citizens and members of Congress are of course entitled to rail against the courts when they don't like judicial rulings. But there is something wrong with stealth efforts to overrule the courts, using phony jurisdiction laws to manipulate judicial outcomes. That's poaching. The practice threatens to devolve into a kind of interbranch blackmail: Watch how you rule, or we'll shut you down. In thinking about our constitutional system of checks and balances, it is important to take the long view. Over the long haul of history, our nation has proved stronger and more resilient because of our commitment to taking constitutional principles seriously. Preserving an independent judiciary is an indispensable element of that commitment.
Rod Smolla is dean of the University of Richmond School of Law. ------1. What is Mark Tushnet’s argument about the relationship between the Supreme Court and the national political consensus? 2. What is the difference between the “pragmatists” and the “legalists”? 3. What is Clarence Thomas’ apparent goal on the Supreme Court? 4. Why should liberals be less apocalyptic about the fight over the Supreme Court?
Bland Justice The Supreme Court, now as ever, follows the national consensus. By Jeffrey Rosen Jan. 17, 2005, Slate,
Despite the apocalyptic rhetoric of liberal and conservative interest groups, Tushnet argues, the Supreme Court has always followed the election returns. Citing the work of political scientists, Tushnet notes that the Warren and Burger Courts never got very far out of line with the national political consensus, and the Rehnquist Court hasn't done so, either. In the 1980s and '90s, as conservatives won the economic war to pass tax cuts and to scale back the size of government, the court modestly followed Congress' lead; the justices struck down a few symbols of the post New Deal regulatory state, but only those on the margins. And as the public sided with liberals rather than conservatives in the culture wars—endorsing gay rights and affirmative action and access to early term abortions—so did the court. "The reason the Court's economic conservatives won and its cultural conservatives lost is simple. In the arena of politics, economic conservatives were winning and cultural conservatives were losing," Tushnet writes.
Tushnet offers a detailed and accessible narrative about the conservative interest groups that were founded in the '80s and '90s to persuade the court to undertake a more aggressive roll-back of environmental regulations, zoning regulations, and health and safety regulations. Yet after reviewing the Rehnquist Court's major interventions in each of these areas, he concludes that the efforts of the conservative groups were largely unsuccessful. "Scholars of real revolutions would be amused by the Rehnquist Court's federalism revolution," he writes. "Not a single central feature of the New Deal's regulatory regime was overturned in that revolution, nor were central elements of the Great Society's programs displaced." For all the invective about the court's decisions limiting the Congress' power to authorize suits against the states, Tushnet reports, the decisions seem to have had little practical effect. Congress can easily create alternative remedies for victims of discrimination—and has done so, by passing a slightly narrower law forbidding religious discrimination after Congress struck a broader law down.
Tushnet ascribes the court's comparative moderation to divisions among the Republican justices, arguing that intra- party tensions have limited the degree to which they were willing to advance the agenda of the corporate supporters of the Republican Party. And he argues that the most important division on the court is between justices like Rehnquist—who identify with the modern Republican Party, transformed by Goldwater and Reagan—and justices like O'Connor and Souter, who identify with an older tradition of country-club Republicanism that is more sympathetic to government regulation.
On this point, I'm skeptical. The division between Goldwater and country-club Republicans doesn't capture the more important division between Rehnquist on the one hand and Antonin Scalia and Clarence Thomas on the other. Rehnquist, who wrote speeches for Goldwater during the 1964 presidential campaign, is undoubtedly a Goldwater Republican, more concerned about the excesses of the welfare state than about enforcing traditional values. But Thomas and Scalia represent a still more recent generation of Reaganite conservative cultural warrior whose sensibility was shaped by the reaction to Roe v. Wade.
Classifying the justices of the Rehnquist Court is an entertaining parlor game, and different readers will prefer their own taxonomies. If forced to choose only two categories, I'd find it more helpful to divide the court between pragmatists and legalists. The pragmatists—including Rehnquist and O'Connor as well as liberals such as Stephen Breyer—are driven more by practical results than by ideological purity. By contrast, the legalists—including Scalia and Thomas, who are occasionally joined at times by liberals such as Ruth Bader Ginsburg and David Souter—are more concerned about applying consistent rules in predictable ways, even if this means challenging federal power on a broad scale.
Understanding Rehnquist as a pragmatist also helps to support Tushnet's argument that he has been an unusually effective chief justice who has done more to unify the court than his less flexible colleagues. It may also help to explain why he parted company with Scalia and Thomas in cases involving the constitutionality of sentencing guidelines as well as the president's power to detain enemy combatants. (In both cases, pragmatism led Rehnquist to take the liberal side.)
In the end, any attempt to divide the justices into two simplistic boxes will be too crude to capture the complexity of the Rehnquist Court. The only way to describe those complexities is to offer detailed portraits of the individual justices. It's here that Tushnet's book shines. Combining first-hand reporting (some of it from his daughter, a former law clerk for Justice Souter) with effective synthesis, he offers individual chapters on each of the justices that are full of surprising and illuminating insights. Perhaps most notably, he is unimpressed by the bullying Scalia ("Antonin Scalia isn't as smart as he thinks he is") and is far more generous toward Clarence Thomas, whom he argues has been underrated as a lawyer. (Justices Breyer and Kennedy have remarked on Thomas' skill and photographic memory in complicated regulatory cases.) Tushnet argues that Thomas' work on the court—particularly in federalism cases—has been more creative and interestingly radical than Scalia's and therefore more likely to make an enduring contribution to constitutional law. Thomas would uproot much of the New Deal in the name of first principles; Scalia is a little more fainthearted.
The ability of future Republican presidents to transform the court, Tushnet concludes, will depend on whether they can nominate and confirm justices who agree with Thomas rather than with O'Connor and Kennedy. "A united Court with new justices who agreed with Thomas could radically transform the constitutional law dealing with Congress's power to regulate the national economy," he writes. What is more, if carried to its logical conclusion, Thomas' vision could lead to the invalidation of laws regulating sexual harassment, racial discrimination, and environmental protections, transforming the scope of federal power rather than tinkering at the edges.
This might suggest that the stakes in the upcoming Supreme Court battles are, in fact, quite high; but Tushnet suggests a court with a majority of Thomases isn't likely to materialize any time soon. The court does indeed follow the election returns, and there does not yet seem to be a national constituency for dismantling the regulatory state root and branch. If the court struck down laws that members of the current Congress care intensely about—such as antidiscrimination laws or federal criminal laws—Congress would object and the court eventually would retreat. That's not to say that a court full of Thomases is inconceivable if the GOP continues to hold the White House and Congress for the next decade. But President Bush is not likely to have the opportunity to replace three moderates or liberals with three Thomases during the next four years alone.
Tushnet's accessible and astute book reminds us—at the moment when we need to be reminded—that the Supreme Court rarely transforms the national political debate. Most of the time, it influences national politics only at the margins—striking down obscure laws that have lost their national constituency (such as sodomy laws) or tacking gently left or right in response to shifts in the national mood. Occasionally, the court tries to impose a vision that is intensely contested by national majorities (as it did during the 1930s), and in these rare cases it tends to provoke a political backlash, followed by a judicial retreat. Most important of all, Tushnet offers a useful caution to his fellow liberals: Rather than squandering their energies on ineffective opposition to Supreme Court nominations, they should focus instead on retaking the White House and Congress.
Jeffrey Rosen is the legal affairs editor of the New Republic and a law professor at George Washington University Law School. His latest book is The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age.
1. What is John Langbein’s central argument about why torture and plea bargaining are similar? 2. In the real American legal system, what are your constitutional rights worth? 3. How is plea bargaining like insurance?
Why Innocent People Confess It's not a breakdown of American justice. It's American justice working as designed. By Michael Kinsley December 12, 2002, Slate.com,
DNA evidence unavailable at the time has now proven conclusively that five teenage boys sent to prison 12 years ago for raping and almost killing a young woman jogger in New York's Central Park were not guilty of that crime (whatever else they may have been up to that evening). What's most shocking is that the boys' convictions were not the result of perjured testimony by racist cops, or manufactured evidence, or jurors addled by some prosecutor's demagogic brilliance. The convictions were based almost entirely on the boys' own confessions. Why would anyone confess to a crime he didn't commit? DNA testing, which can identify a person indisputably (or indisputably rule that person out) based on a single strand of hair or tiny scrap of skin, has taught us that there are people in prison, including some on death row, who are not just undeserving of their punishment for some legal or political or psychological reason, but plain-and-simple, Perry- Mason not guilty. The Innocence Project at Cardozo Law School, led by Barry Scheck and Peter Neufeld, has achieved a steady stream of murder-conviction reversals. As intended, this has given many people pause about an irreversible sanction like the death penalty.
The emphasis on capital crimes is misleading in a couple of ways, though. Crimes like murder and rape are amenable to reversal by DNA testing, but there is no reason to assume that wrongful convictions are more common in DNA- friendly crimes than in others. In fact, there is good reason to assume the opposite. Murder and rape convictions, especially those with a prospect of capital punishment, generally follow a full-dress trial with all its elaborate rights and protections for the defendant. A false confession under these circumstances is highly unusual and highly suggestive that something improper went on at the police station. Even a true confession, for that matter, is a good indication that someone had a lousy lawyer.
But for every one criminal conviction that comes after a trial, 19 other cases are settled by plea bargain. And when, as part of a plea bargain, innocent people confess to a crime they did not commit, that isn't a breakdown of the system. It is the system working exactly as it is supposed to. If you're the suspect, sometimes this means agreeing with the prosecutor that you will confess to jaywalking when you're really guilty of armed robbery. Sometimes, though, it means confessing to armed robbery when you're not guilty of anything at all.
In 1978 Professor John Langbein, now of Yale Law School, wrote a dazzling and soon-famous article in the Public Interest called "Torture and Plea Bargaining." Langbein compared the modern American system of plea bargaining to the system of extracting confessions by torture in medieval Europe. In both cases, the controversial practice arose not because standards of justice were too low, but because they were too high. In medieval Europe, a conviction for murder required either two eyewitnesses or a confession by the perpetrator. This made it almost impossible to punish the crime of murder, which was an intolerable situation. So, torture developed as a way to extract the necessary confessions.
Plea bargaining evolved the same way, Langbein explained. As our official system of justice became larded with more and more protections for the accused, actually going through the process of catching, prosecuting, and convicting a criminal the official way became impossibly burdensome. So, the government offered the accused a deal: You get a lighter sentence if you save us the trouble of a trial. Or, to put it in a more sinister way: You get a heavier sentence if you insist on asserting your constitutional rights to a trial, to confront your accusers, to privacy from searches without probable cause, to avoid incriminating yourself, etc.
Essentially, 95 percent of American criminal defendants are tried under a system entirely different from the one we learn about in school and argue about in politics (liberals celebrating its noble protections, conservatives bemoaning its coddling of criminals). In this real American justice system, your constitutional rights are worth, at most, a few years off your sentence.
Plea bargaining might also be thought of as an insurance policy. Insurance is a way of trading the risk of a large bad outcome (your house burns down and you're out $100,000) for the certainty of a smaller bad outcome (a bill arrives and you're out $850). Plea bargaining is a way of trading the risk of 20-years-to-life for the certainty of five-seven. But by creating this choice, and ratcheting up the odds to make it nearly irresistible, American justice virtually guarantees that innocent people are being punished.
The five mistaken Central Park jogger convictions weren't officially plea bargains, but unofficial offers of lighter sentences are among the more pleasant theories about how American justice got these teenagers to fabricate confessions. Then in prison, four of the five got stung by the parole system, which is like plea bargaining, Round 2. Their time behind bars was extended because they "declined to accept responsibility" for the rape they didn't commit, as reported in the New York Times. Constitutional protections like the right against self-incrimination don't apply to parole hearings, either. You don't have to confess, but extra years of prison are the price if you don't.
------1. What are the dangers of using opinion polls in deciding constitutional issues? 2. How does relying on opinion polls undermine the democratic process designed by the Constitution? 3. What was the ironic effect of “constitutionalizing” the right to an abortion in Roe v. Wade?
Poll-Tergeist Why the Supreme Court shouldn't care what you think. By Howard Bashman August 21, 2002, Slate.com,
Whether one believes that the meaning of the Constitution is static and immutable or continuously evolving, turning to the blunt instrument of opinion polls to derive constitutional principles is the worst way to go about making law. Where the majority's support for a principle is weak and easily subject to change, reliance on polls produces a Constitution whose meaning is always in flux. And when the public's support for a principle is strong and enduring, removing the issue from the political process only serves to empower beyond its size the vocal minority opposed to the right in question.
Convenience is the principal benefit of the "opinion poll method" of constitutional adjudication. As the court explained in the case about killing the mentally retarded, "polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong." And because 16 pro-death-penalty states had exempted the retarded from the death penalty since the court last addressed the issue in 1989, the majority felt confident that a trend was established. Based mainly on these two considerations, executing the retarded is now unlawful as a matter of constitutional law, despite the fact that the Constitution itself said precisely the same thing about executing the retarded in 2002 as it said in 1989—not much.
The ease with which a mere nod to "public opinion" allows for a sea change in the Constitution's meaning contrasts starkly with the arduous amendment process the framers prescribed in the document itself. Actually amending the Constitution's text requires two-thirds approval from both the U.S. House and Senate, followed by ratification from the legislatures of three-quarters of the states. But a constitutional amendment would not have been required to reach the result the court achieved by banning the execution of the retarded with a stroke of its pen. The same national trend noted by the court would surely have led the other pro-death-penalty states to pass statutes prohibiting the death penalty for retarded inmates. But the court didn't wait to allow public opinion to drive the political machinery that would have brought about that change. Instead, it pre-empted the democratic process with a bold statement that the practice violated a Constitution that 13 years earlier allowed precisely such executions.
Here in the United States—where an unelected federal judiciary is responsible for resolving the most politically and socially divisive issues of our time—it is not surprising that the term "unconstitutional" has become colloquially synonymous with "very, very bad thing." In the public's mind, all matters fervently opposed either are unconstitutional or should be. Yet caution should guide those who approve of having the Constitution's meaning determined by referendum. For public opinion can, and does, change.
If some mentally retarded person committed a horrific offense next week, a majority of Americans might abandon their opposition to executing the retarded. Such a shift in opinion would mirror how the country has—within the past 30 years—trended first against and then in favor of any death penalty. And if public opinion once again permitted execution of the retarded, presumably the court would have to flop back to the 1989 ruling from which it so recently flipped.
The public opinion method of constitutional adjudication presents an even more serious risk than the appearance of a Supreme Court driven by unprincipled vacillation: When a controversial right the public supports is "constitutionalized" without any clear basis in the document's text, the majority can end up being harmed more than helped.
Take, for example, abortion. In 1973, the Supreme Court recognized a limited federal constitutional right to abortion services, just as many states were already in the process of discarding the most opprobrious of the abortion restrictions then in existence. The Supreme Court pre-empted the battle over abortion from being resolved by the elected branches of government, although the public's majority support for abortion rights would have produced essentially the same legal landscape we have today.
Instead, constitutionalizing the right to abortion has caused a national trend to become a national lightning rod. Those passionately opposed to abortion have banded together to concentrate as much support as possible in favor of anti- abortion candidates for public office. And it has produced results. Various state legislatures have enacted abortion restrictions (most of which the courts have struck down) in the years since Roe v. Wade, and during that same period more occupants of the White House have been pro-life than pro-choice.
The poll numbers back up this hypothesis. The Gallup Organization earlier this year published an in-depth analysis of the public's views on abortion. Gallup's polling confirmed the majority's preference for abortion rights. Yet the results also showed that, in the 2000 general election, those for whom abortion, pro or con, was one of the single most important issues favored George W. Bush by a 17 percent margin. According to Gallup's analysis, the bottom line impact of these single-issue voters in the 2000 presidential election was a net abortion vote of +2.4 percent in favor of Bush. In an election as close as Bush versus Gore, Roe v. Wade may have determined the presidency.
Why do abortion opponents hold more sway at the polls than the majority which supports abortion rights? Once the right to abortion became constitutionalized, supporters of that right could afford to base their votes on other issues. Opponents continue to vote on this single issue. Removing the right to abortion from the legislative process has thus made anti-abortion activists more politically powerful than they otherwise would have been had abortion rights been up for grabs each time citizens trekked to the voting booth.
Yet if the Supreme Court, following a change in membership, were to overrule Roe v. Wade, the politically powerful anti-abortion minority could produce several years during which the abortion laws of the United States are more restrictive than the national majority prefers. And if that happens, Roe v. Wade will be correctly seen as responsible for the majority's lack of political influence on the abortion issue.
Allowing the Constitution's meaning to be determined by public opinion polls not only devalues that historical document, but it also ends up undermining the majority's preferences by allowing a vehemently opposed minority to become much more influential than it would otherwise be. Recent history has shown just how tempting it can be to constitutionalize the public's preferences. Instead of celebrating that result, both the Supreme Court and the public should recognize that it is in the majority's own interest to reject constitutional adjudication by opinion poll in favor of pursuing change through the political process. After all, it is the legislative process—and not the courts—which exists to serve the majority's wants and needs.