I wanted to briefly discuss a large theme that always stuck with me from my CON LAW class: that since Judicial Review is made up, the Court always cognizant of their lack of means to enforce anything must walk a tight-rope or risk irrelevance.
Marbury v. Madison was taught to me as a complex case in which the Supreme Court created a power. There had not been a question before of whether the SCOTUS had the right to find acts of the Executive or Legislative unconstitutional. Nor had there been any reason to say that if there is in fact such a right, there’s a remedy – that means that the Court could order compliance.
Previously, Jefferson and others view was that each branch interpreted the constitution for themselves. The President’s responsibility are for him to determine and a co-equal branch cannot tell them how to interpret. Obviously, that’s changed and Marbury changed it.
In Marbury the Court did this very cleverly, they went through a long discussion of why this right of Judicial Review exists, and then said BUT, we can’t do anything about it. So they created a right, but made it so the right couldn’t be questioned because they did not order compliance.
There is some debate about this (see Learned Hand V. Weschler debate).
I want to focus now on what part of this debate matters - the risk of irrelevance of the SCOTUS (and remained an important part of the theme of the Class and the Reality of the SCOTUS to date and certainly now in the future.
Learned Hand said something like (all of this is from my extensive outline)
beware social upheaval nothing gives the Court the right to do this in the Constitution, so since we made the power up we should exercise it sparingly. Do it when necessary. The power is not logical from the Constitution and (we risk not being listened to).
Now let’s focus with laser light focus on Social Upheaval aspect and the risk of SCOTUS irrelevance.
Justices in the real world have to think of if they really want to take on the political and social establishment of a number of states.
Example: When Mental Hospitals were getting out of control, every state had court orders telling state hospitals what to do (it would be like courts telling CSU how many bathrooms to have), SCOTUS just chose to turn down appeals, they didn’t want to answer the question
The point is that there were orders in place but there was no change. It happens. This is an example of the Court exercising discretion to not hear because they know they will be ignored and that chips away at their power.
They avoid that possibility, they are cognizant of issues of social upheaval to retain power.
And I want to get into the obvious yet unstated some may disagree with: the SCOTUS has no real method of forcing compliance. In that example if they agreed with the state courts how are they going to force bathrooms be put in place when to date they’ve been completely ignored.
So what happens when a SCOTUS becomes out of step with the People? Learned Hand’s point is we can’t or we’ll be ignored. My professor would say, they have a couple dozen bailiffs. They order the president to do something the Executive in theory has the army, bailiffs aren’t going to march into the White House and force compliance or be sent out to Mental Hospitals.
And I recognize there are people saying, but the whole government gets behind SCOTUS decisions for enforcement. OK, for now. But, that’s based on a precedent where SCOTUS is aware of their risk of irrelevance. They made up the power, they need to be careful to exercise it or we just won’t listen.
The best example is the “Switch in Time that Saved the nine”. The SCOTUS was happily going along striking down FDR’s legislation. FDR said OK we’ll just add justices. Suddenly a Justice, I believe Kennedy, changed his mind on everything. Because they ruled in step with the Public the Court was not expanded and they retained their power.
But this serves as precedent for their true lack of power when too fringe and political. One check is the ability to add justices (other than simply not listening if they do not have backing by the Executive branch).
I think one could say with the exception of Bush V. Gore, they have largely avoided being clearly political. Rehnquist famously was angered by Republicans running on changing the composition of SCOTUS. Obviously that’s changed.
Which brings us to my thought on the future. The court has been sliding and sliding to becoming a political body. I can promise the SCOTUS (or at least most of it’s members now) do not want a justice pushed through. They already realize they are too political and at risk of irrelevance. Recall, CJ Roberts statement there are not Obama or Trump appointees as damage control.
If the Republicans push through a nominee in a blatant act of hypocrisy and politicization they are going to push SCOTUS off of this tight rope.
Assuming Biden wins election, what exactly would make him follow unpopular opinions and allow their enforcement. Precedent states that when the balance shifts too far the Court corrects itself or risks expansion (which would then continue and continue and fundamentally change their composition).
I am not saying Kavanaugh will suddenly change positions, but given the history of the Court they are acutely aware of maintaining power because of their inherent fragility.
If such hypocrisy leads to a replacement of RBG who could complain against expansion and then in a way the jig is up and they ceded a great deal of independence and power.
So in a historical context this has played out before. And the SCOTUS has been forced back down their hole.
I think Trump and McConnell will be playing with fire in a nomination. It fundamentally risks the SCOTUS as it is shifting them far far further right of the citizens, and Learned Hand predicted this would/could render them irrelevant.
I want to also include this link to Beau of the Fifth Column from youtube.
I want to credit him with a point that may be lost, I think many people think that this may hurt Democratic candidates for Senate in typically Red states. For abortion. Beau makes a convincing point that it may be more damaging for Republican candidates who are trailing.
Do they want to be tied to possible SCOTUS justices who have advocated for (as one has) the shooting and detention of unarmed protesters in the Country?
Do they want to be tied to a lifetime appointment of a grossly unpopular president?
I don’t know I tend to think expansion is inevitable. But, I tend to think that the Senate will not confirm it’s just too hypocritical and they are probably better off not leading to an argument justifying expansion. I can almost promise the SCOTUS itself doesn’t want this or the attention.
