Thanks to everyone for the interesting (if abbreviated) discussion of Problem 3 last night. At some level, the problem raises the question of what it means to live in a constitutional democracy, or at least our constitutional democracy. If the Supreme Court's decisions are indeed the final word, not just in the case before it, but as to the meaning of the Constitution, perhaps we are no longer a government "of the people, by the people," but instead have given that responsibility over to the Court. The Court's opinions become no different than the Constitution itself. At the same time, it is not easy to square the idea of independent powers of constitutional interpretation with the rule of law. The behavior of school districts in the South following Brown v. Board of Education was hardly a sterling example of how a democracy should function. It was obstructionist in the worst sense. The Court held in May 1954 that segregation in public education was inherently unequal, yet by 1965, a whopping 1 percent (!) of African American children in the Deep South were attending desegregated public schools.
So, how should we resolve these questions? Where should we strike the balance? What does living under our Constitution mean to you?
Tuesday, September 9, 2008
Section 5 of the Voting Rights Act
The Northwest Austin Municipal District No. 1 indeed filed its appeal late yesterday at the Supreme Court, challenging the constitutionality of Section 5 of the Voting Rights Act. Based on recent decisions involving Section of the Fourteenth Amendment (which we will discuss next week), the District asserts that Congress's extension of Section 5 of the VRA in 2006 goes beyond Congress's powers to enact "appropriate legislation" to enforce the Fifteenth Amendment. (The enforcement provisions of the Fourteenth and Fifteenth Amendments are essentially identical in language.) You can find coverage of yesterday's filing here.
More on political questions
Just to put a little more flesh around the bones of the political questions doctrine, consider the following political questions decisions:
* In Nixon v. United States (involving a district court judge, not the President), the Supreme Court held that the judge's challenge to the procedure adopted by the Senate for trying his impeachment (where not all Senators were present for all aspects of the trial) presented a political question. (Here, the Court emphasized the "textual commitment" criterion.)
* In Goldwater v. Carter, an individual challenged the President's unilateral withdrawal of the U.S. from a treaty with Taiwan. (The treaty had been previously ratified by the Senate, as required for all binding treaties.) The contention was that the President also needed the assent of the Senate before dissolving a treaty. The Court held that whether the Constitution requires such assent presented a political question.
* As I mentioned last night, in a case that challenged the legality of the Clinton administration's commitment of U.S. troops to the former Yugoslavia, the lower federal courts held the case presented a political question. (There was also a problem with standing.)
Obviously, the doctrine is fairly malleable and amorphous. To be sure, the six factors identified in Baker v. Carr are relevant. But those factors hardly identify which cases will be judged to present political questions with any degree of certainty. It is important to keep in mind that very, very few cases are judged to present nonjusticiable political questions. Indeed, we can basically count on our hands all of the cases in which the Supreme Court has reached such a result.
* In Nixon v. United States (involving a district court judge, not the President), the Supreme Court held that the judge's challenge to the procedure adopted by the Senate for trying his impeachment (where not all Senators were present for all aspects of the trial) presented a political question. (Here, the Court emphasized the "textual commitment" criterion.)
* In Goldwater v. Carter, an individual challenged the President's unilateral withdrawal of the U.S. from a treaty with Taiwan. (The treaty had been previously ratified by the Senate, as required for all binding treaties.) The contention was that the President also needed the assent of the Senate before dissolving a treaty. The Court held that whether the Constitution requires such assent presented a political question.
* As I mentioned last night, in a case that challenged the legality of the Clinton administration's commitment of U.S. troops to the former Yugoslavia, the lower federal courts held the case presented a political question. (There was also a problem with standing.)
Obviously, the doctrine is fairly malleable and amorphous. To be sure, the six factors identified in Baker v. Carr are relevant. But those factors hardly identify which cases will be judged to present political questions with any degree of certainty. It is important to keep in mind that very, very few cases are judged to present nonjusticiable political questions. Indeed, we can basically count on our hands all of the cases in which the Supreme Court has reached such a result.
Assignment for Wednesday
The reading assignment for Wednesday evening's class (September 10) is that on the original assignment schedule for September 8. We will begin our section on the powers of Congress: the basic framework and an introduction to the Commerce Clause (pp. 99–112 and 136–142 of the casebook). The assignment for next Monday's class is that set out on the original assignment schedule for September 10 (Lopez and Raich, as well as Problem 4). Thanks.
Thursday, September 4, 2008
Problem 3
When we cover Problem 3 in class on Monday, I want to focus our discussion on three distinct questions:
1. To what degree is there a gap between the law in theory and the law in fact? And if there is such a gap (or at least the potential for such a gap), how might that affect the Supreme Court's decision making? (Think here a bit about Marbury and Cohens, as well as the widespread reaction in the South to the Supreme Court's 2000 decision in Santa Fe.)
2. Is the Supreme Court's interpretation of the Constitution -- that is, the Court's rationale for its decisions and constructions of constitutional meaning -- the "supreme law of the land" as the Court seems to assert in Cooper v. Aaron? Or does each department of the government have the authority to interpret the Constitution for itself? In other words, was President Lincoln correct that, although he was obliged to comply with Dred Scott with respect to the parties in that case, he was not obliged to accept the Supreme Court's holding that Congress lacks the authority to regulate slavery in the territories?
3. Is it ever appropriate for actors -- and specifically the President -- simply to defy a order of the federal judiciary because he believes it is necessary to the preservation of the nation? If so, why? And how can this be squared with "the rule of law"?
Thanks, and have a great weekend.
1. To what degree is there a gap between the law in theory and the law in fact? And if there is such a gap (or at least the potential for such a gap), how might that affect the Supreme Court's decision making? (Think here a bit about Marbury and Cohens, as well as the widespread reaction in the South to the Supreme Court's 2000 decision in Santa Fe.)
2. Is the Supreme Court's interpretation of the Constitution -- that is, the Court's rationale for its decisions and constructions of constitutional meaning -- the "supreme law of the land" as the Court seems to assert in Cooper v. Aaron? Or does each department of the government have the authority to interpret the Constitution for itself? In other words, was President Lincoln correct that, although he was obliged to comply with Dred Scott with respect to the parties in that case, he was not obliged to accept the Supreme Court's holding that Congress lacks the authority to regulate slavery in the territories?
3. Is it ever appropriate for actors -- and specifically the President -- simply to defy a order of the federal judiciary because he believes it is necessary to the preservation of the nation? If so, why? And how can this be squared with "the rule of law"?
Thanks, and have a great weekend.
Next week's assignments
Given where we finished last night, we will not get to all of the material originally assigned for Monday (Sept. 8). Instead, we will cover political questions (Baker v. Carr and Vieth), the principle of constitutional avoidance (Ashwander), and the practical limitations on the judiciary's authority (supplemental readings and Problem 3), and we will begin (but perhaps not finish) our discussion of McCulloch v. Maryland. Thus, the material on the commerce power will be pushed to Wednesday. For now, the reading assignment for Wednesday (Sept. 10) remains the same, though it is unlikely that we will get to Problem 4 until the following week. Of course, I will know more once we finish class on Monday. It is possible we will defer our discussion of Gonzales v. Raich as well.
Thanks for all of the questions and vigorous discussion last night. I really enjoyed it.
Thanks for all of the questions and vigorous discussion last night. I really enjoyed it.
Monday, September 1, 2008
Even more on Plaut
Another great student question on Plaut, this time in my e-mail in box.
Question: After initially reading Plaut, I asked the question, "Why is this in the Advisory Opinion section?" I think I realize why now, but wanted to confirm that with you. The following is part of Scalia's opinion in Plaut: "Having achieved finality, however, a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the court said it was." This statement appears to me to be grounded in two ideas. First, there is a separation of powers between the Legislative and Judicial branch. More importantly, and directly related to the concept of Justiciability, a process which would allow Congress to alter interpretations of decided Supreme Court cases would abolish all notion of the court's prohibition against advisory opinions and in effect create the possibility that all Supreme Court decision making is subject to further Congressional scrutiny. This doesn't mean that a Congress cannot act to create new laws to avoid a Supreme Court ruling, but they cannot alter laws to re-open final judgments. The authority to pass final judgment on a case is vested in the Supreme Court only . . . and not in Congress. Is this an accurate summary?
Answer: I think that is a terrific summary. On reflection, I think Plaut sits at the confluence of United States v. Klein and Hayburn's Case, and for precisely the reasons you state. It is like Klein in the sense that it involves a fundamental, separation of powers limitation on Congress's ability to regulate the federal courts. Courts adjudicate cases, and Congress cannot interfere with this essential function of the federal judiciary. But it also is like Hayburn's Case in the sense that, were Congress able to unwind final federal court judgments, those "final" judgments would effectively be subject to review by another branch (just as the judicial pronouncements in Hayburn's Case were reviewable by the Executive Branch). In essence, as you say, it would render every judicial ruling, at least potentially, an advisory opinion.
Question: After initially reading Plaut, I asked the question, "Why is this in the Advisory Opinion section?" I think I realize why now, but wanted to confirm that with you. The following is part of Scalia's opinion in Plaut: "Having achieved finality, however, a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the court said it was." This statement appears to me to be grounded in two ideas. First, there is a separation of powers between the Legislative and Judicial branch. More importantly, and directly related to the concept of Justiciability, a process which would allow Congress to alter interpretations of decided Supreme Court cases would abolish all notion of the court's prohibition against advisory opinions and in effect create the possibility that all Supreme Court decision making is subject to further Congressional scrutiny. This doesn't mean that a Congress cannot act to create new laws to avoid a Supreme Court ruling, but they cannot alter laws to re-open final judgments. The authority to pass final judgment on a case is vested in the Supreme Court only . . . and not in Congress. Is this an accurate summary?
Answer: I think that is a terrific summary. On reflection, I think Plaut sits at the confluence of United States v. Klein and Hayburn's Case, and for precisely the reasons you state. It is like Klein in the sense that it involves a fundamental, separation of powers limitation on Congress's ability to regulate the federal courts. Courts adjudicate cases, and Congress cannot interfere with this essential function of the federal judiciary. But it also is like Hayburn's Case in the sense that, were Congress able to unwind final federal court judgments, those "final" judgments would effectively be subject to review by another branch (just as the judicial pronouncements in Hayburn's Case were reviewable by the Executive Branch). In essence, as you say, it would render every judicial ruling, at least potentially, an advisory opinion.
Subscribe to:
Posts (Atom)