Friday, September 18, 2015

Supreme Court and Constitutional Questions

The term "judicial review" is tainted and fraught with bias because, from this doctrine's beginning in 1803, it has been used for partisan political purposes. The intent of the Framers of the Constitution was that judicial restraint and limited review be exercised, not a wholesale judicial repeal or rescuing of laws just because the justices or their partisan masters desired that they make certain findings. 

In both Dred Scott and NFIB v Sebelius, concurring opinions fundamentally disagreed with the Chief Justice's reasoning. This is not unusual, but shows that the concurring justices did not agree with the logic of the Chief Justice in his essentially one-man opinion.
Supreme Court Justices in 2010

Concurrent opinions in NFIB thought Supreme Court Justice John Roberts' rewriting of the law was unneeded. Dissenters thought it subversive. Dissenters and concurers in the 1857 Dred Scott case likewise thought the Chief Justice's logic was off base.

Roger B. Taney, Chief Justice 1836-1864

Amendments XIII and XIV may have been, at least partly, unneeded as the way of overturning Taney's decision. Amendment XIII abolished slavery and XIV, among other things, declared categorically that all African-Americans are citizens of the United States. It is a truism of constitutional thought that Taney's decision was overturned by these post-Civil War amendments but it could have been overturned by removing one justice, Taney. The Civil War itself put slavery on a fast path to extinction; the benefit of the Thirteenth Amendment was that it did cleanly put an end to slavery, completely and once and for all (at least in the West). However, Dred Scott could have been overturned in whole by a Court that recognized the logic of the two dissenting opinions written by John McLean and Benjamin R. Curtis. They did not agree with Taney that slavery was enshrined in the original Constitution. They did not need amendments to reach this conclusion, only logic.

It is frequently assumed in court opinions that other courts as well as legislatures knew what they were doing when they handed down a decision or passed a law, respectively. No doubt sometimes they do, but equally obviously, sometimes they don’t. Did the Framers of the United States Constitution and the members of the first Congresses know what they were doing when they kicked the can down the road on slavery? I think not. Would they have been horrified had they been able to look into a crystal ball and foresee the American Civil War and subsequent racial disharmony that resulted from their indecision? Many would have felt excruciating remorse. The cases of Thomas Jefferson and Benjamin Franklin are illustrative: Jefferson had qualms about slavery even though he was a slave owner; Franklin had already decided that slavery was wrong when he went to the Constitutional Convention in 1787, but he held his tongue because he feared that if the issue of abolition was raised then there would be no United States at all.

Marbury v Madison (1803) was a Supreme Court (SCOTUS) decision tainted by partisan political bias. Chief  Justice John Marshall was a member of the Federalist Party and his decision favored members of his party against members of the Democratic-Republican Party. It is  a famous case for its establishment of the doctrine of Judicial Review, that SCOTUS may review laws in an unlimited way and that it could declare acts of Congress to be unconstitutional. The expansion of judicial power lay in the fact  that the Court need not present a reasonable legal argument but only the semblance of a reasonable argument. And there is no appeal of its ruling, however egregious, because it is the highest court in the land.

John Marshall, Chief Justice 1801-1835

Ever since, judicial review has often been tainted by political bias. Marbury was the first time that SCOTUS declared an act of Congress unconstitutional. Dred Scott v Sandford (1857) was the second. In one of the many examples of dubious opinion dragged into a SCOTUS decision, Chief Justice Roger Taney ruled in Dred Scott that the Framers had uniformly viewed African-Americans as "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect." This was Taney’s opinion more than that of the Framers as a dissenting opinion by Justice McLean pointed out.

Taney also declared that whether slave or free, “no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States." By this he seemed to mean that a slave could neither become free nor be made a citizen of a state; this seems a violation of state's rights, especially since one of the dissenting opinions in the case pointed out that several precedents made slaves into freemen and into voting citizens, as well. Even though Taney decided that Scott therefore had no standing and SCOTUS had no jurisdiction in the case, he went on to decide the very issues over which the Court had no jurisdiction. The absurdity of this was pointed out by both Justice Samuel Nelson in his concurrence and Justice Curtis in his dissent. Further exceeding the mandate of the case, Taney declared an act of Congress, the 1820 Missouri Compromise, to be unconstitutional. This act had already been superseded by the Kansas-Nebraska Act of 1854, but Taney, who personally preferred the outcome of the latter act, weighed in here to clear up any lingering doubt that the Missouri Compromise was a dead letter. (Erstwhile President Franklin Pierce had wished that the Missouri Compromise could be found unconstitutional as an alternative to Kansas-Nebraska; Taney was late but in earnest by giving the ex-president and others what they had wanted three years earlier.) In their dissents, both Justices Curtis and McLean pointed out that no Framer of the Constitution living at the time of the Missouri Compromise had objected to it on constitutional grounds.

To show how idiosyncratic these decisions can be, Justice Nelson wrote a concurrence that was a quasi-dissent in which he did not disagree with the outcome of Taney’s decision in that Scott remained a slave, but he did not declare as Taney had that the federal circuit court had had no jurisdiction to begin with or that the Missouri Compromise had been unconstitutional. Nelson was not as ambitious as Taney was to make new law that would uphold his personal political prejudices. 

Samuel Nelson

Benjamin R. Curtis*
John McLean
 Arguing from strong precedent, both Curtis and McLean argued that Taney’s statement that African-Americans could not be citizens was wrong. McLean in particular showed that African-Americans had already been able to vote in five states at the time of the ratification of the Constitution and were therefore citizens. Moreover, in an 1835 case, Marie Louise v Marot, the Louisiana Supreme Court had ruled that, once freed, a former slave could not be returned to slavery. (Something that allegedly occurred in the Scott case and which Taney had even entertained as a hypothetical but, which, nevertheless, did not change his opinion.) As the dissenting opinions indicate, Taney’s opinion in this case was far from temperate and was not in accordance with a sober interpretation of the Constitution.
It is often said (see, for example, the Wikipedia article on the Dred Scott Decision) that the Scott Decision was "overturned" by the 13th and 14th amendments, but was that really necessary? Although Chief Justice Taney wrote the opinion that was considered to be the governing one in the case, it is striking that every single justice on the Court wrote his own opinion whether he concurred or dissented. This implies that all of the other justices found something troubling in Taney's legal reasoning. At least four justices (Nelson, Grier, Curtis and McLean) strongly disputed his declaration that an act of Congress, the Missouri Compromise, was unconstitutional. It seems that the only thing needed to overturn that part of the Dred Scott Decision was the replacement of a single justice, Taney. The whole decision might have been overturned if another Court later saw that Curtis and McLean were correct and that their interpretation should have governed the majority.

The decisions in the Marbury and Scott cases seem to show that SCOTUS ruling Congressional acts to be unconstitutional has always been fraught and has actually unleashed a great deal of mischief in American history. (Scott, for example, has been called one of the immediate catalysts of the Civil War.) More recently, the decisions in NFIB v Sebelius (2012) and King v Burwell (2015) might suggest that  some subsequent Courts have erred in the exact opposite direction by trying NOT to declare a law unconstitutional even if it meant that the Court had to “help” Congress out of a cul de sac created by its own poorly written legislation.

In two different cases the Court bent over backward to preserve the same law (the Patient Protection and Affordable Care Act, that is, “Obamacare”) even though the law’s own language threatened to cause its collapse. To accomplish this, in NFIB, the Court redefined a penalty (unconstitutional) as a tax (constitutional). In the King case, SCOTUS said that the language of the PPACA that referred to exchanges "established by the state" really meant "established by the state and federal government.” In other words, both decisions essentially rewrote key parts of the law in order to preserve them. A philosophy of true judicial restraint and more limited authority to review would have led the Court to rule that the language as written in the law meant what it said and that if Congress could not bring itself to write a coherent law, then it is not up to SCOTUS to rescue it.

It is telling that, although it did not spawn the nine-way multiplicity of opinion that the Scott Decision did, nevertheless, NFIB saw concurring opinions that, like that of Nelson in 1857, agreed with the outcome of Chief Justice John Roberts' decision but basically disputed his legal reasoning as unnecessarily tortured.  Re-writing the law was not needed, in the views of Ruth Bader Ginsberg and the other justices who concurred. (And it was subversive in the eyes of the justices who dissented.)
Hudson v McMilian (1992) is a case in which the Court decided to apply the Eighth Amendment to a case in which prison guards had taken it upon themselves to beat a prisoner. Justice Clarence Thomas dissented on the grounds that there were plenty of remedies for the plaintiff short of the Eighth Amendment to the Constitution, which only applies to judicial sentencing. Therefore, the amendment did not apply and the case should not have been heard. It is not the function of the Supreme Court to apply the Constitution to right every wrong in every case. (I would point out that it was not as if the judge who had sentenced the plaintiff to prison had made regular beatings by the guards an official part of his punishment; the guards, themselves, had violated state and federal laws in administering these extra-legal beatings.)

In Hudson, then, SCOTUS expanded the Constitution in ways that violated the meaning and original intent of the text of the law itself, twisting the Constitution to mean what it does not mean and to do what it was never meant to do. Thomas’ unheeded advice to the Court was not to hear cases where the Constitution does not apply.

This judicial restraint is an antidote to decisions that stretch the authority of SCOTUS beyond its intended limited review to a point where the implication of its decisions is best described by what the dissent in NFIB said about the Court’s application of the Necessary and Proper Clause in that case: “its application rests upon a theory that everything is within federal control simply because it exists.”

* A pet peeve of mine is noting the many good things done by President Millard Fillmore, the most under-rated president IMHO. One thing he did was to appoint Curtis to the Supreme Court.

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