Accountability for Judicial Activism Act

Thu Mar 18 15:34:35 PST 2004

I'm not sure if this is the authoritative construction that Mark is looking
for, but in 1796, the court concluded that where Congress provided that the
court is to exercise its appellate jurisdiction by writ of error, the facts
found by the inferior court are conclusive  -- even in equity and admiralty
cases where the traditional "appeal" would allow the appellate court to
reexamine the facts as well as the law. Wiscart v. D'Aucy, 3 US 321 (1796).

Chief Justice Elsworth explained: "If Congress has provided no rule to
regulate our proceedings, we cannot exercise an appellate jurisdiction; and
if the rule is provided, we cannot depart from it."  If "Congress has
prescribed a writ of error, and no other mode, by which it can be
exercised, still, I say, we are bound to pursue that mode, and can neither
make, nor adopt, another.  The law may, indeed, be improper and
inconvenient; but it is of mroe importance, for a judicial determination,
to ascertain what the law is, than to speculate upon what it ought to be."

Justice Wilson contended in dissent that since "an appeal is the natural
and proper mode" in admiralty and that an appeal implies an examination of
fact as well as law, the Congress could not restrict the Supreme Court's
power to review the facts as well as the law.

Ed Hartnett
Seton Hall

                      "Scarberry, Mark"                                                                                                     
                      <Mark.Scarberry at pepper        To:       conlawprof at lists.ucla.edu                                                     
                      dine.edu>                     cc:                                                                                     
                      Sent by:                      Subject:  RE: Accountability for Judicial Activism Act                                  
                      conlawprof-bounces at lis                                                                                                
                      ts.ucla.edu                                                                                                           

                      03/18/2004 02:40 PM                                                                                                   

Note that the bill says it is based on the power granted to Congress in
Article III, section 2. I suppose that would be the power of Congress to
make "Regulations." The Supreme Court's appellate jurisdiction is to be
exercised "under such Regulations as the Congress shall make." Someone
reading those words noncontextually might think that "Regulations" could
include substantive limits on the decisions to be reached in those cases in
which there is appellate jurisdiction, and perhaps oversight of those
decisions. I suppose we would all be shocked if the Court acceded to such
an interpretation. The drafting history and the structure of the
Constiitution, including the vesting of "[t]he judicial Power" in the
courts, suggest very strongly that Congress was not to have such
substantive oversight of the Court's decisions.

A question for those who know more about Art. III, section 2 than I do:

Has the Court authoritatively construed the meaning of "Regulations" in
Art. III, section 2?

Mark S. Scarberry

Pepperdine University School of Law

-----Original Message-----
From: Keith E. Whittington [mailto:kewhitt at princeton.edu]
Sent: Thursday, March 18, 2004 10:47 AM
To: conlawprof at lists.ucla.edu
Subject: RE: Accountability for Judicial Activism Act

In terms of supporters for VAWA, ADA, etc., I suspect that most of them are
still fairly committed to the idea of an activist court and uncomfortable
with the idea of seriously restricting it.  For every Morrison, there's a
Lawrence or a Casey (and even now the lingering memory of Brown and Roe) --
and the latter are generally more salient.

In terms of Lewis and this proposal, the reverse is probably the case (the
benefits of a Morrison are outweighed by the harms of a Lawrence or
Casey).  This is probably also more prospective than retrospective in its
motivation.  In the Congressional Record, Lewis said: "It should be of
little surprise that the impetus of this debate, and the modest solutions I
intend to set forth, stem from the November ruling by the Massachusetts
Supreme Court to allow same-sex marriages and the subsequent rulings on the
constitutionality of the Defense of Marriage Act that have followed.  I am
a strong supporter of numerous legislative measures currently being
considered by this Congress, aiming to define marriage as an exclusive
union between one man and one woman. However, I believe a more
comprehensive solution is necessary to address the broader, troubling trend
toward judicial activism, a development with definitive implications beyond
just the issue of marriage."  This is largely about protecting DOMA (and
maybe the Pledge of Allegiance and the like).  Even if this were to pass,
what would he have to lose.  Congress might be able to muster this kind of
supermajority support on issues like the Pledge of Allegiance, DOMA, RFRA,
flag-burning.  I doubt there's even a current majority, let alone a
supermajority, to overturn the Court's recent federalism decisions, or say,
its current constitutional doctrine on affirmative action.

Which is to say, given the foreseeable line-up on the Court and in the
elected branches, it is primarily the most liberal likely decisions rather
than the most conservative likely decisions that would be most vulnerable
under the Accountability for Judicial Activism Act.  If that's true, then
we'd expect to see these kinds of proposals coming from the right rather
than the left (who has the floor majorities?).  For those on the left upset
by recent judicial activism, we'd probably be more likely to get that
rhetoric and activity right now on judicial appointments -- and we do (who
has the Senate filibuster pivot?).

Keith

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Zietlow, Rebecca E.
Sent: Thursday, March 18, 2004 1:13 PM
To: conlawprof at lists.ucla.edu
Subject: FW: Accountability for Judicial Activism Act

I just re-read my posting and realized that it might sound like I am
endorsing a position of congressional supremacy.  I'm not, but I do agree
with the principle of interpretive equality as described by Keith in his
excellent work.  This Court has made clear numerous times that it does not
think that interpretive equality exists, which is why I am not surprised
that a bill like HR 3920 might come along (like RFRA did in the 1990s) but
I am a bit surprised about its source.

RZ

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Zietlow, Rebecca E.
Sent: Thursday, March 18, 2004 12:51 PM
To: kewhitt at princeton.edu; CONLAWPROF at lists.ucla.edu
Subject: RE: Accountability for Judicial Activism Act

I think the proposal is clearly symbolic as well, a fact which is made
especially clear when you compare the sponsor's press release with the
language of the Act.  The Act speaks only to USSCT striking down federal
statutes, while the press release refers to "judicial activism" in general
and the Massachussetts SCT in particular.  I also agree with Keith that the
bill seems to express a philosophy of congressional supremacy rather than
interpretive equality (and thanks for those citations).   What puzzles me
is how the right continues to rally against judicial activism as if all
judicial activism was on the liberal end, as if the SCT was still the
Warren Court.  In plain fact, the Rehnquist Court is equally judicially
activist yet we don't see any proposals like HR 3920 coming from supporters
of say, VAWA, the ADA or the ADEA.

RZ

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Keith E. Whittington
Sent: Thursday, March 18, 2004 12:05 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Accountability for Judicial Activism Act

There are several possible resolutions to the dilemma Bobby points out.
One is to draw subject-area lines to demarcate issues on which we accept
something like judicial supremacy and others on which we accept something
like congressional supremacy.  Robert Jackson's approach to federalism
looks something like that (on federalism issues, Congress is supreme; on
some individual rights issues, the judiciary is supreme).  Walter Murphy
advocates something like this approach in "Who Shall Interpret?" Review of
Politics 48 (1986): 401.

Another alternative would discourage any assumption of supremacy at all, in
the sense of policy finality.  Instead, all institutions should be viewed
as engaged in a on-going dialogue that may or may not lead to some
particular settlement but will probably lead to various interinstitutional
jostlings in the process.  Louis Fisher advocates something like this
approach in Constitutional Dialogues (Princeton University Press, 1988).

Another alternative would suggest a more fluid system, in which different
institutions are "supreme" on different issues at different times.
Particular equilibria are worked out through politics rather than through
logical deduction from a general theory of institutional responsibility and
constitutional interpretation.  I advocate something like that approach in
"Presidential Challenges to Judicial Supremacy and the Politics of
Constitutional Meaning," Polity 33 (2001): 365 and "Extrajudicial
Constitutional Interpretation: Three Objections and Responses," North
Carolina Law Review 80 (2002): 773.

I may be forgetting some other alternatives, and certainly there are plenty
of other names and publications that could be mentioned that sketch out
variations on these possibilities.  (And "advocate" above may not be the
right word since most of these discussions tend to be at least as much
about describing how our constitutional system has historically operated as
about how normatively it should operate.)

I take the Accountability for Judicial Activism Act to be purely symbolic
and mere position-taking rather than a serious legislative proposal, though
it reflects recent conservative suggestions on this score (e.g., Robert
Bork's), a not uncommon approach globally to this issue (for those who like
global constitutionalism and constitutional borrowing), and Progressive-era
proposals for a "judicial recall" (advocated most prominently by Teddy
Roosevelt in his Bull Moose phase).  The proposal, however, looks more like
congressional supremacy than interpretive equality.

Keith Whittington

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Thursday, March 18, 2004 11:30 AM
To: RZietlo at utnet.utoledo.edu
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Accountability for Judicial Activism Act

        This is just one of the many conflicts that can arise in a regime
of "interpretive equality."  For the Court to prevail, it (we) must embrace
judicial supremacy.  For Congress to prevail, it (we) must embrace
congressional supremacy.  How do those who embrace interpretive equality
resolve this conflict?

        Incidentally, I could not access H.R. 3920.  Would Rebecca or
someone else kindly provide assistance.  Thanks.

Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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