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July 18, 2008

Breaking news: SCOTUS has powerful people constraining (the tyranny of?) the majority

I find intriguing (and a bit amusing) this review of the Supreme Court term by Edward Lazarus has this essay online at FindLaw.  The piece is titled "What the Past Term Reveals About the Roberts Court: Evidence that the Court Is Disturbingly Elitist and Anti-Democratic," and here is the heart of the piece (with headings omitted):

[T]his is a Court with elitist, anti-democratic instincts, one more comfortable with the judgments of courts and bureaucratic experts than with those of the American people or their elected representatives. 

A walk through the Court’s rulings in a variety of areas of law shows the pattern:

Who decides whether an alien detained at Guantanamo can be classified as an “enemy combatant” — the Executive Branch under a specific grant of authority from Congress (with minimal judicial oversight), or the federal courts through the traditional avenue of habeas corpus? According to this Court, the answer is the federal courts.

Who decides whether the death penalty for child rapists is so disproportionate as to be unconstitutional as an instance of cruel and unusual punishment — state legislatures, including the six who have imposed such a penalty, or the Supreme Court, making its own independent moral judgment?  According to this Court, this Court decides.

If the Food and Drug Administration has approved a medical device, can the device-maker be held liable under state tort laws protecting consumer safety?  According to this Court, the federal agency’s decision nullifies the state tort laws.

How much discretion do juries have to exact punishment for monumental damages caused by monumental companies in a maritime context?  According to this Court, the jury’s authority to punish cannot exceed the amount of compensatory damages, even if that amount will not cause much economic pain to the company involved.

In electing state court judges, can the respective political parties choose their competing candidates through a system that gives overwhelming control to the party bosses, or must the processes be more open and democratic?   According to this Court, in New York State Board of Elections v. Lopez-Torres, the parties and their bosses can control the process.

Can a state condition the right to vote on the ability of a voter to present a government-issued photo identification?  In Crawford v. Marion County Election Board, the Court okayed this restriction on the right to vote, despite claims of discrimination against the poor and elderly.

Without wanting to overstate the point, there is a zeitgeist to these decisions.  They reflect a Court instinctively averse to having policy made through the unpredictable populist vehicles of litigation and juries, unconcerned about enhancing small-d democracy, and loath to permit exercises of governmental power without the check of judicial review.

Though I like Lazarus's effort to develop a theme for this past Term, I find quite peculiar the notion the Court's decision to uphold a state law requiring voter ID in Crawford against challenges lodged by bureaucratic experts claiming discrimination.  And, also peculiar is Lazarus's failure to discuss the biggest case of the Term, Heller, which would seem to fit his thesis in general, though perhaps he recognizes that the label "elitist" does not quite fit with a decision to protect gun rights.  And, of course, other major constitutioanl rulings this Term like Baze and Medellin and Williams do not fit Lazarus's script in any way.

Beyond the particulars of the last Term, however, I find amusing and perhaps telling this effort to attack the Roberts Court for doing exactly what most sophisticated students of the Constitution think a Supreme COurt is supposed to do when considering constitutional claims.  Based on their (elitist?) education and view on enduring constitutional principles, the Justices are supposed judicially review exercises of governmental power.  At its core, Lazarus's concerns seem to be with the decision in Marbury v. Madison and the basic power of judicial review much more so than how the Roberts Court is exercising this power.

July 18, 2008 at 11:24 AM | Permalink


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How about Danforth vs. Minn., rejecting the Marbury-style "we'll tell you states what the law is, thank you," approach? I suppose JGR was in dissent there, but still, the majority opinion runs afoul of the script.

Posted by: Anon | Jul 18, 2008 12:18:41 PM

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