One in a series of articles. You can read the whole series here.
It seems to be part of our national DNA. We see ourselves as so unlike the rest of the world that we have developed a semi-religious belief in what we call “American exceptionalism.” Maybe the upside is some kind of boost to our collective self-esteem. But one of the downsides is a reluctance to look around the world and see if anyone (especially not France) has a good idea from which we might benefit.
Especially on democracy. We see ourselves as the world’s model for democracy and the “rule of law.” We expect others to copy us, although they have long since stopped doing so with reference to the specifics of how to design a government. We grumble a good deal about the breakdowns in our system, but we are not much open to ideas for improving it.
University of Minnesota political scientist Lisa Hilbink, whose specialties include comparative constitutional systems around the world, said that basically, since the end of World War II, most of the world outside of Latin America came to the conclusion that the U.S. system was “pretty crazy.”
A great many new constitutions have been written since then, in emerging democracies and in old democracies that wrote new constitutions. In many ways, the foreign framers did benefit from our example, often in deciding what not to do. As I have mentioned in previous installments, no other country thinks our Electoral College example is worth following and likewise no one has designed a system of “veto points” like ours in which it is much easier to block action than to get anything done.
Anyway, as I wrap up the judiciary portion of my extended rant about the imperfections in our system, I thought I would list a few of the ideas that have either been suggested or even demonstrated around the world – and even within the United States — as other sets of founding mothers and fathers searched for even better ways to form what our framers called a “more perfect” system.
Perhaps, despite my rants, you feel that the “supremacy” of the U.S. Supreme Court on constitutional matters is not really a problem. Or perhaps you can’t imagine how a constitutional democracy could remain both constitutional and a democracy without it.
Other fully developed democracies do function without judicial supremacy. Britain, for example, has a Supreme Court (fairly recently created by the way; the House of Lords used to fill that role). But the British Supreme Court lacks the power to strike down laws enacted by Parliament. Their system is referred to as “parliamentary supremacy.”
Of course, the Brits are pretty weird. Not only do they make their judges wear wigs, but they have no written constitution.
On the other hand, plenty of countries that do have a written constitution simply assign – by constitutional language – the ultimate power over the laws to the legislative branch. The Netherlands (I learn from Professor Sanford Levinson’s book “Framed”) does have a written constitution and it explicitly states that “the constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.”
Several of the American states, by the way, also specify that the state Supreme Court cannot overrule the Legislature. And they aren’t even foreigners.
Two out of three branches
Levinson also describes a really cool feature of the relatively new post-Apartheid South African Constitution. The South African Parliament is less supreme than the British. Its enactments can be struck down, but only if both the president and the Supreme Court agree that a law is unconstitutional. Here’s how it works:
The president has a limited veto power. He cannot veto a bill just because he thinks it’s a bad idea but only if he believes it contradicts the constitution. After the president makes his argument that the law is unconstitutional, Parliament reconsiders the bill. If, in light of the president’s arguments, Parliament agrees that the law it passed violated the constitution, the bill stays vetoed. But Parliament can also disagree (presumably the majority believed it was constitutional in the first place). If so, Parliament can re-pass the law. No supermajority is required (unlike the U.S. system, which requires a two-third vote of both houses of Congress to override a presidential veto).
If the executive and legislative branches have thus disagreed, the highest court then considers the constitutional issue. If the court agrees with the Parliament, the law takes effect. If the court agrees with the president’s position that the law violates the constitution, it is voided. But the beauty here is that the (least democratic) judicial branch is not overruling the two more democratic branches (as it does in our system). The court holds the balance only when the two more democratic branches disagree.
The ‘notwithstanding’ clause
Hilbink, whose specialties include comparative judicial systems, told me about a wrinkle in the Canadian Constitution that seems very civilized.
As it moved in stages toward complete independence from Britain (except that Canada still recognizes Queen Elizabeth as its monarch), Canada developed a constitution and bill of rights which, I’m told by the comparative constitution scholars, is among the leading models embraced by new democracies. Canada’s 1982 charter does grant to its highest court the right to review the constitutionality of federal or provincial laws, but allows the elected legislatures to have the last word. Here’s how that works:
If the high court believes a law violates the charter, it can invalidate the law and advise the national or provincial parliament of the constitutional problem the court sees with the law. The originating legislature can then declare that “notwithstanding” the court ruling, it is putting the law into temporary effect for up to five years.
Five years later, after both the legislature and the court have seen the law function and have an updated understanding of its effect and its tension with the constitution, the legislature can decide to let it expire or enact it for another five years.
In the relatively short history of the provision, the notwithstanding clause has seldom been used. It might seem a bit elaborate. And perhaps it is little more than a smokescreen for legislative supremacy, since ultimately it’s Parliament’s opinion of the constitutional question that holds sway. But if you assume that Parliament is not trying to violate the constitution just for spite, the “notwithstanding” gag provides mechanism for the court’s interpretation to be taken into official account, without transferring the ultimate decision from the elected legislature to the appointed judges. And it gives the electorate an opportunity to make its feelings about the new law known during the five-yar trial period.
You should note, in thinking this one through, that it authorizes a province to maintain a law within its territory, even though the courts believe it violates the federal constitution. Depending on which states and which Supreme Court opinions they think about, that idea is liable to give some Americans pause.
Supreme Court term limits
The Framers of the U.S. Constitution actually provided very little guidance about how the Supreme Court should function (and, as I have mentioned several times, did not explicitly assign to the court the power to overrule Congress and the president). But one thing the Framers did was give federal judges lifetime terms.
(Technically, the Constitution says the judges “shall hold their offices during good behaviour,” which leaves open impeachment for bad behavior. Only one justice has ever been impeached by the House, and that one, Samuel Chase in 1805, was acquitted on all charges by the Senate and remained on the bench until his death.)
In the Federalist Papers and elsewhere, the Framers made clear that their reason for giving the justices lifetime jobs (and salaries) was to shield them from political pressure they might feel in deciding cases if they were coming up for reappointment.
Sounds like a reasonable impulse the Framers had. But it’s also a pretty good example of the trouble with being stuck with the best guess of a particular group of 18th century minds, especially since they also made the Constitution so hard to amend.
We have had the experience of justices staying stubbornly long past their intellectual prime. Liberal lion William O. Douglas lasted 36 years on the court, the record, but spent his last years there in a wheelchair, battling incontinence, vision loss and declining in mental faculties. (At least apocryphally, a friend asked Douglas how he would continue to serve when he could no longer see to read the briefs and not think clearly to analyze the cases. He replied that all he had to do was wait to see which way Chief Justice Warren Burger voted, and vote the other way.)
As I discussed in the previous installment, contemporary justices often game the retirement system, waiting to vacate their seats when their successor can be chosen by a president of the same party and ideology as the one who put them on the bench.
If the power of an unelected justice to make, change or strike down a law is to have any hint of democratic legitimacy, it must come from the electoral mandate of the president who appointed him or her. But even that faint claim must get moldy if a justice rules on for decades after the appointing president has retired. We now have a court consisting of two justices (Antonin Scalia and Anthony Kennedy) appointed by Ronald Reagan, who last received an electoral mandate 28 years ago; one (Clarence Thomas) by George H.W. Bush (24 years ago); two (Ruth Bader Ginsberg and Stephen Breyer) by Bill Clinton (16 years ago); two (Chief Justice John Roberts and Associate Justice Samuel Alito) by George W. Bush (eight years ago); and two (Sonia Sotomayor and Elena Kagan) appointed by the President Obama.
(I made this same argument previously, on the eve of the Obamacare case.)
So if lifetime appointments are not optimal, is there anything else that can be done without wrecking the delicate balance of powers across branches?
The comparative constitutional scholars tell me that the U.S. system of lifetime appointments is unique in the world, or extremely rare. Most nations have a mandatory retirement age for justices, as do most of the states of the United States. The Minnesota Supreme Court has a mandatory retirement age of 70 years, which is typical of the states. (The U.S. Supreme Court, by the way, heard a case in 1990 challenging the mandatory age 70 retirement law from Missouri on grounds of age discrimination, but the Supremes upheld the practice on a 7-2 vote.)
University of Chicago Law Professor Tom Ginsberg, who also focuses on international comparisons, told me that “our justices have very long careers which tend to be bad because the court is less likely to be responsive to changing public attitudes.” Of course, if you believe, as “originalists” do, that the provisions of the U.S. Constitution have a single fixed meaning, which was locked in for all time by the attitude of the men who wrote and ratified them in the 1780s, you might not want justices to be responsive to changing public attitudes. Ginsberg also said that the originalist school of constitutional interpretation is something that exists only in the United States.
A simple fix
Here’s one simple proposal that’s been floating around for a while. (I first read it in a book chapter by Professor L.A. Powe, Jr. of the University of Texas Law School.) Supreme Court justices would be appointed for a single fixed term of 18 years. That way, assuming we continue to have nine justices (as I have mentioned, that number is not set by the Constitution and has fluctuated over the course of U.S. history), there would be a justice up for retirement once every two years. Each president could expect to make two appointments in a four-year term. The political makeup of the court would fluctuate gradually and steadily according to the outcome of presidential elections, and you would get away from flukes in which some presidents (most recently Jimmy Carter) could serve a full four-year term and not get a single appointment, and others can get several. Presidents could pick the most qualified candidates and not have to game the system by picking relatively young nominees in hopes of extending their legacy for several decades. The single fixed term removes the incentive for justices to time their retirements strategically. Since a justice would be guaranteed one long term and prohibited from any second term, the original hope of the Framers — that justices not allow their desire to be reappointed to influence their decisions – would be preserved. As Powe wrote, in defending the particular idea of 18 years:
Eighteen years is long enough to do the job and then do it well and to guarantee independence from the elected branch, while short enough to avoid the unseemly problems that life tenure creates.
Of course, this idea could not be adopted without amending the Constitution, which specifies lifetime tenure.
The supermajority fix
Here’s the last one for today: Why not require a supermajority of votes within the Supreme Court to overturn a law?
I didn’t think of this on my own and, although I can’t remember exactly where I first saw the idea. I believe it was in the comment thread under one of my crazy posts over the last couple of years. (If that’s true, I apologize for not remembering whose comment.) But I saw the wisdom, and have come across the suggestion elsewhere in researching this series.
From the standpoint of striking a balance between majority rule, and reasonable guarantees of fundamental rights for minorities, it’s the 5-4 ruling, when all nine votes are from unelected justices, that is the really the heart of the problem.
Suppose, for the sake of discussion, there is such a thing as knowable constitutionality. And this thing is knowable to judges but not to presidents or members of Congress or to the electorate that put them into office. And without this check against them, the members of Congress would undermine the fundamental guarantees of the Constitution. In fact, it might be the case that — exactly because they aren’t accountable to the electorate — the justices are best able to recognize when a bad majoritarian impulse is going to cause the government to run roughshod over the rights of minorities that are necessary to real freedom and that are protected only by the Constitution.
I wish there were a great many clear examples – like the Brown ruling of 1954 that ended de jure public school segregation — of the Supreme Court heroically protecting minority rights. Unfortunately, it’s easier to rattle off instances when the Supreme Court failed to fulfill this function (like the legal treatment of Indians during most of constitutional history, like the decision to allow thousands of U.S. citizens of Japanese ancestry to be dispossessed and interned during World War II, and like the Plessy separate-but-equal case that pretended segregation was a form of equal protection).
But if there are such occasions, and if the cure for them is to place a legalistic view of constitutionality above the normal workings of democracy, wouldn’t it be reassuring if the high judges agreed by more than a one-judge margin that constitutionality had been breached? To me it would. Whether the magic formula would be to require a 6-3 vote of the justices or maybe even a 7-2 would be a close question.
If the idea of anything other than a straight “majority rules” practice for the court to strike down a law sounds deranged, I would mention (again borrowing from Levinson’s “Framed”) that two states constitutionally require a supermajority of the state Supreme Court to strike down enactments of the state Legislature. Nebraska requires five out of seven votes and our dear neighbors in North Dakota require a serious supermajority of four out of five justices!
By the way, a funny last note. This wouldn’t require a constitutional amendment. The Constitution contains several clauses that require supermajorities for certain actions, like overriding a presidential veto or confirming a treaty. But (since as you know it says nothing about the Supreme Court striking down laws, nor about the size of the court) it says nothing about how many justices or how large a majority it might take to strike down a law. The simple majority rule is just that, a rule of the Court. The justices themselves could change it. What a nod to “judicial restraint” or “judicial modesty” that would be.