The US Supreme Court process is just very strange

It would be hard to exaggerate just how much the US model of supreme court has been rejected by the modern democracies of the world. On three dimensions, the US model is really rare: appointment procedure, tenure, and size. And, yes, we should be actively pursuing reform in all these dimensions.

I am going to reference the data in A Different Democracy, which covers 31 countries.

Countries that allow a popularly elected president to nominate, contingent on consent of a malapportioned second legislative chamber, with no extraordinary majority needed:

2 (Brazil, US)

(Two others are by president and 2/3 of senate: Argentina and Mexico)

Countries that provide life tenure to supreme court judges:

3 (Argentina, Denmark, US)

Countries with top court having fewer than 12 members:

7 (Argentina, Australia, Brazil, Canada, Mexico, New Zealand, US)

Countries with all these characteristics: 1

_______

In general, other countries either require extraordinary legislative majorities (such as cases mentioned above) or involvement by non-partisan commissions. Many have terms of several years (usually longer than those of the elected bodies), although quite a few have retirement ages (usually 70 to 75, sometimes younger).

Parliamentary systems often have appointment by the cabinet, and while that sounds quite partisan, I am not aware of other countries that have such politicized appointments as the US has nowadays. There may be some clear reasons why formal executive discretion over supreme-court appointment is not a source of controversy in established parliamentary democracies (to my knowledge), but I can’t claim to know what those reasons are.

It is noteworthy that presidential systems have mostly moved away from anything looking like the US model, and for good reason. The processes that most resemble the US would be those of Argentina or Brazil, not normally countries Americans want to consider peers in terms of democratic process, but actually comparisons that are quite apt.

(Also: not considered here, but covered in the book, is that several countries have constitutional review in a separate tribunal rather than in the apex court. Most such countries are civil law jurisdictions.)

Tyranny of the minority

Excellent, succinct post by G. Elliot Morris about the fundamentally undemocratic (and, yes, unrepublican) nature of American political institutions.

Tyranny of the Minority

Despite what the founders intended, the Supreme Court is now fully able to be controlled by a significant minority of the country’s voters. Of course, it is not a popularly-elected branch of government, but there are costs associated with minoritarian rule that transcend the original intent of the founders.

[Excerpted from the post at Morris’s blog]

Rotation of US Supreme Court justices?

According to the transcript of the Democratic pre-candidates’ debate (night 2), Bernie Sanders said:

I do not believe in packing the court. We got a terrible 5-4 majority conservative court right now. But I do believe that constitutionally we have the power to rotate judges to other courts. And that brings in new blood into the Supreme Court…

I would not pretend to know what Bernie meant. He says some strange things. But the Constitution is pretty brief on structure of courts. Let me try to imagine what he meant, and consider whether it could be constitutional.

Could legislation establish that there is a wider panel of appellate justices from which Supreme Court justices are drawn for periods of time? I am certainly not a constitutional lawyer, but maybe.

In Article III, Section 1, the US Constitution states, 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 Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…

So we know from this that how “inferior courts” are structured is up to Congress, and that individual judges can’t be subjected to a term of some set length, without a constitutional amendment.

We also know, from Article II, Section 2, that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.” No other judges of any court are mentioned. So legislation could establish the inferior court judges are appointed by the Supreme Court, for example (a model that is actually used in some countries). But the point about “rotation” raised by Sanders is the reverse: could members of the Supreme Court be drawn from other courts, rather than be sitting on a permanent body?

I do not see why not. The judges as individuals can’t be dismissed except for violating “good behaviour”. But could not Congress establish that the President, at set periods, appoints (with advice and consent) judges from the Circuit Courts to sit on the Supreme Court, who at set periods rotate back to their “inferior” courts? The only obstacle that becomes immediately apparent to me is if the specific court (Supreme or inferior) a judge sits on is considered part of his or her “Compensation” (capital C in original, Article III, Section 1). But if all judges in these courts are accorded the same salary and benefits, then maybe the Constitution actually does permit some sort of rotation.

Now, I am not saying that Sanders is clever enough to have thought it though the way I just articulated. Nor I am claiming that I have not overlooked some other constitutional obstacle. But the Constitution is a lot more vague than folks might think when it comes to stipulating how the federal judiciary is structured. Most of that is left to Congress.

Now she speaks

Retired Justice Sandra Day O’Connor is worried about “dictatorship.” Her remarks at an event at Georgetown were reported by Nina Totenberg and posted at Raw Story.

In an unusually forceful and forthright speech, O’Connor said that attacks on the judiciary by some Republican leaders pose a direct threat to our constitutional freedoms.

…she took aim at former House GOP leader Tom DeLay. She didn’t name him, but she quoted his attacks on the courts at a meeting of the conservative Christian group Justice Sunday last year…

[…]

It gets worse, she said, noting that death threats against judges are increasing. It doesn’t help, she said, when a high-profile senator suggests there may be a connection between violence against judges and decisions that the senator disagrees with. She didn’t name him, but it was Texas senator John Cornyn who made that statement…

O’Connor observed that there have been a lot of suggestions lately for so-called judicial reforms, recommendations for the massive impeachment of judges, stripping the courts of jurisdiction and cutting judicial budgets to punish offending judges.

And now the punch-line:

Pointing to the experiences of developing countries and former communist countries where interference with an independent judiciary has allowed dictatorship to flourish, O’Connor said we must be ever-vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings.

So, do you suppose she regrets joining the coup?

h/t Michael J.W. Stickings

Roe, Bush v. Gore, South Dakota, and abortion

Scott L. at his best (and that’s saying something).

(I can’t say the same about the immediately previous post of his, in which he redirects his aim at a third-party candidate instead of at Bush v. Gore for producing the wrong winner in 2000.)

Gore on the constitutional crisis

Al Gore’s speech from January 16 is long, but powerful. Highly recommended. And, no, it is not a coincidence that I read it and am posting it at the very moment when Gore’s opponent in the 2000 case before the Supreme Court is speaking–and on the very day when the vaunted “swing vote” on that Court was replaced with an adherent to the doctrine of executive unilateralism. None of this is a coincidence.

Alito and the “unitary executive”: The Latin Americanization of the US Constitution?

From today’s LA Times:

This week, as Alito goes before the Senate Judiciary Committee, it will be seen whether Bush’s boldness in asserting powers of the presidency has complicated the confirmation prospects for his nominee to the Supreme Court. Along with abortion rights, executive power has moved to the forefront in the battle over Alito’s confirmation.

As well it should. I noted a few days ago that Alito has been on record since 1986 as favoring signing statements as a means by which the President could seek to have the courts accept the President’s understanding of a law in future litigation over that law. Courts have tended not to take such statements into account, but if a fan of signing statements were on the Supreme Court, he might seek to raise their prominence.

So, if 1986 seems too long ago, there is this statement from November, 2000, before the Federalist Society, reflecting on his time in the Reagan administration’s Justice Department:

We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president. And I thought then, and I still think, that this theory best captures the meaning of the Constitution’s text and structure.

The Times then notes that,

In a sense, the “unitary executive” theory states the obvious. There is only one president. But many of its Reagan-era proponents applied this theory to say independent government agencies were unconstitutional because they were not under the direct control of the president.

In combination, the support for signing statements and opposition to independent regulatory agencies constitute a theory of executive power in which the legislature only makes broad pronouncments of policy, which a single man (or, theoretically, woman) then can reshape. In the absence of independent agencies and with sympathetic justices on the highest court, the President could issue decrees to bureaucrats to implement a law in a way consistent with the Presidential signing statement, and expect the courts to back up the executive’s re-interpretation of the legislative mandate.

In other words, in Alito we have a potential Supreme Court justice who believes that the United States would be better if we had a more Latin American style presidency: One that has much more than a veto, but instead has the constitutional right to implement laws as it sees fit.

Among my research specialties are comparative presidential authority and executive-legislative relations. I have long believed, as a product of my research, that Latin American countries need their congresses to assert more authority over the details of policy-making and create more independent agencies to check executive unilateralism in implementation.

In other words, for all my zeal for reform of certain features of US political institutions–see “the core” list on the left sidebar and “The Mission” above–in terms of executive powers I have long seen the US as the model that other “pure”* presidential systems should emulate.

Apparently, Alito believes the best models of presidentialism are to be found farther south. That is disturbing. The United States Senate–hardly my favorite US institution–needs to force the President to nominate option no. 3 for the critical O’Connor seat on the United States Supreme Court.

*I.e., “pure” in the sense of being unitary at the top: President as head of government as well as head of state, as opposed to “semi-” presidential hybrids, in which the head of government is subject to the confidence of the majority of the lower/sole house of the legislature. The latter is a still-better model, in my view.

Alito and presidential signing statements

Just yesterday I posted a note and some questions on Bush’s recent signing statement, in which he reinterprets a ban on torture as not meaning what it says. Now I ran across a Washington Post article from yesterday that notes that Associate Justice nominee Samuel Alito is a fan of signing statements.

In a memo from February 5, 1986, Alito outlined a strategy for

having the president routinely issue statements about the meaning of statutes when he signs them into law.

Such “interpretive signing statements” would be a significant departure from run-of-the-mill bill signing pronouncements, which are “often little more than a press release,” Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president’s take on a law as to “legislative intent.”

“Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress,” Alito wrote.

The quote from Alito’s memo is remarkable. While it is true that the President’s approval is “just as important as that of the House or Senate” inasmuch as all three institutions must consent to the same text of a bill (ignoring bills passed over a veto), it does not follow from that fact that the “president’s understanding of the bill should be just as important.” Congress consists of two chambers, numerous members, and committees. It debates alternate versions, strikes amendments, and replaces provisions. It thus has a lengthy record of why it approved one version and not others that were considered. However, under our constitution, the President is provided a take it or leave it option. If he does not like the bill, he can veto it, and thus re-start the transactional process, leading–maybe–to a new bill emerging from Congress that he’ll like better. But there is no such thing as sign light–taking this provision, blocking that, and reinterpreting others. Many presidential systems give the president such authority, thereby inserting the president more directly into the lawmaking process. But not ours. (I expand this idea a bit in a comment at Lawyers, Guns, and Money.)

The Post article quotes from an article by Phillip J. Cooper in the September, 2005, Presidential Studies Quarterly (now added to my must-read list), noting that the Bush administration

has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress.

This adds another item to the list of reasons why Alito should be given a very long and skeptical look by the US Senate in exercise of its constitutional power of advice and consent, two of which I have identified here previously:

He considers Baker v. Carr (on malapportionment) an improper ruling

He believes warrantless wiretaps are permissible

US Supreme Court to hear DeLaymander case/Frist and Byrd spat on ‘nuclear option’–on anniversary of Bush v. Gore

The United States Supreme Court has agreed to hear a challenge to the mid-decade redistricting in Texas in 2003, which was engineered by US House majority leader, Tom DeLay (R-Tex).

Meanwhile, in the last two days Senate Majority Leader Bill Frist (R-Tenn.) and senior Democrat Robert Byrd of W.Va. have engaged in a verbal skirmish surrounding the possibility that a filibuster by the party with the minority of seats in the body could prompt the party with manufactured majority of seats to “go nuclear” and unilaterally abolish the right of filibuster. Even though there has been no filibuster threat thus far, Frist on Sunday said “the answer is yes” when asked if the Republicans would change the rules to stop a filibuster of Samuel Alito’s confirmation. Byrd today responded on the floor of the Senate: “If he ever tries to exercise that, he’s going to see a real filibuster if I’m living and able to stand on my feet or sit in my seat. If the senator wants a fight, let him try it.”

Interesting that both of these matters would come precisely at the fifth anniversary of Bush v. Gore. These cases all tie together and provide a trifecta of one party using dubious manipulation of law and rules to solidify its grip on the levers of federal power.

In Bush v. Gore, the Supreme Court handed the presidency to America’s (and probably Florida’s) Second Choice. As my remarks on the Senate filibuster allude to, Republicans are also America’s Second Choice in Senate elections since 2000 (thus the filibuster currently prevents a minority party from acting like a majority party). And in the House, while the Republicans had the plurality (not majority) of votes in 2004, they lost votes compared to 2002, yet gained seats. The net gain is accounted for by the DeLay’s blatant and extraordinary mid-decade partisan gerrymander. (About halfway through an LA Times article there is a good quick summary of that redistricting.)

How will the Court rule on the Delaymander case? The case is similar to one in Pennsylvania in which a 5-4 ruling rejected the notion that an excessively partisan redistricting plan violated equal protection. (The first-linked story, from Bloomberg, has an overview.) Justice Kennedy sided with the majority in that case. Rick Hasen, quoted in both the Bloomberg and Times stories, suggests “One possibility is that Justice Kennedy has come to a firmer conclusion as to how to deal with these cases.”

New Chief Justice John Roberts will hear the Delaymander case. We can probably predict where he comes down on the matter, given that Roberts helped prepare the Republicans’ case in Bush v. Gore.

As for Samuel Alito–who will be on the Court by then if either there is no filibuster or the Republicans nuke it–we know he does not object to legislative malapportionment. Is it a stretch to think he considers partisan gerrymandering to be just fine, too?

I think we know how this is going to turn out.

[UPDATE: Scott Lemieux, at LGM has his usual perceptive analysis, asking whether: (1) The Delaymander is so ourtageous that it will be the case that prompts Kennedy to develop, with the 4 dissenters in the Pennsylvania case, a standard for unconstitutional partisan gerrymanders; or (2) Kennedy is ready to go with Scalia and argue that all partisan gerrymander cases are non-justiciable. Althouse believes the latter: “Perhaps it will use this occasion, however, to set a clear standard for bowing out of these controversies altogether.”]

[Scott also notes that Alito’s vote, which we can assume, as I did above, to be that the gerrymander is constitutionally permissible, will not affect the balance in the case, given that he replaces O’Connor, who voted with the majority in the Pennsylvania case.]

[Don’t miss Rick Hasen’s post on this topic.]