Alternatives to Judicial Supremacy

Bob Sheridan bobsheridan at earthlink.net
Mon Sep 4 20:43:45 PDT 2006


I sincerely appreciate the kind response.  I'm sure that I don't have a 
useful suggestion as to a decent, much less better, alternative to our 
existing solution, which is to relegate the power, intentionally or not 
from the drafters point of view, to a group that happens to be as 
insulated as they are, or pretend, from the daily political winds, but 
not the political climate, as we've been able to devise.  Relegating the 
power to Congress would be less perfect, and to the president even less 
perfect than that.

I'm at a loss to imagine the wording of an amendment that constrained 
how or when the justices may use the power of judicial review, as long 
as it resides with them.  We have amendments that claim to limit or deny 
the power to construe (9, 11), and others that affirm or deny certain 
powers, but how would any list member suggest controlling when and how 
the Court decides to employ the power?  The kinds of opportunities are 
often surprising, meaning difficult to have imagined in advance, at 
least for people enjoying the limitations of an imagination such as mine.

The fact that we don't have such an amendment is a sign that this must 
be a difficult problem indeed to solve.

It seems that we are left, in the last analysis, to a sense of judgment 
on the part of fallible humans appointed to the Court to use the power 
with care.  How much care seems difficult to prescribe.  When we don't 
like a decision, well, in D. Scott, there was a war.  Following Brown v. 
Board, there's been a revamp in the nation, since 1954.  Congress and 
the president have tried to deal with disliked decisions (A. Jackson in 
the Cherokee cases by ignoring, Congress in RFRA, reacting to Smith, and 
the anti-flag-burning act held unconstitutional following Johnson v. 
Texas, for example).

Our system, as imperfect as it may be, has certain advantages, such as 
the slow, reactive, deliberative process in litigated cases such as 
we're all familiar with.

As I've read the posts here, the discussion tends to analyze the reasons 
some justices appear to exercise the power as they do, which is well and 
good.  What I find myself thirsting for, after having my appetite thus 
whetted, is what to do to rectify the shortcomings that a number of the 
contributions seem frustrated by.

Or shall we simply keep insisting that Justice X, Y, or Z has got it 
wrong yet again?  The fact is that the tradition of the exercise is the 
constraint.  We look to previous examples, so we don't need a text.  If 
we had a text, we'd have to ignore it,  in the exercise of good 
judgment, of course.  Maybe we should decline to tinker with a system 
that we're only likely to make worse, but continue to analyze on the 
chance we're apt to come up with something.

Bob S.


RJLipkin at aol.com wrote:
>         I think Bob is absolutely correct.  Since the term "activism" 
> is not generally explicated in an analytically helpful manner, it's 
> used as a pejorative term by both conservatives and liberals.  Indeed, 
> I'm often it is dumbfounded why principled constitutional 
> conservatives and principled constitutional liberals do not unite 
> against a practice which almost everyone, even its staunchest 
> defenders, recognizes on some level to be problematic in a republican 
> democracy. Given this united complaint (although aimed at different 
> decisions) why isn't exploring alternatives to judicial supremacy one 
> of the primary research interests of legal scholars. Political 
> scientists may have a wider range of issues to explore in American 
> government.  But law professors are stuck, it seems to be, with the 
> courts. (I'm careful not to say: "The courts, all the courts, and 
> nothing but the courts.")
>  
>         For Bob, how's this for starters: congressional overrides, 
> executive overrides, councils of revision; impeaching justices; 
> recalling justices; electing justices; a periodic re-appointment 
> procedure; referenda; random and temporary selection of appellate 
> judges to serve as justices on the Court; formal term limits or 
> informal incentives such as attractive retirement packages; and 
> congressional standing to challenge any attempt to strike down a 
> congressional statute, and congressional recalls of justices. I'd 
> welcome additions to this list. 
>  
> Bobby
>
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
> Delaware
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