Accountability for Judicial Activism Act

Michael MASINTER masinter at nova.edu
Thu Mar 18 16:16:42 PST 2004


Congress cannot reverse or confirm individual decisions of the Supreme
Court without exercising the judicial power of the United States.  See
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).  I do not think the
power to establish regulations can bear the weight of this legislation;
section one of Article Three says in no uncertain terms that the judicial
power is vested in the courts, not in congress.  Congress can regulate the
kinds of cases in which the courts exercise that power, but cannot claim 
for itself the power to decide a case.

Michael R. Masinter			3305 College Avenue
Nova Southeastern University		Fort Lauderdale, Fl. 33314
Shepard Broad Law Center		(954) 262-6151
masinter at nova.edu			Chair, ACLU of Florida Legal Panel

On Thu, 18 Mar 2004, Scarberry, Mark wrote:

> 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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