27 September 2005

Judicial Review

The hearings on Chief Justice-designate Roberts, the nonsense at FEMA, and the Supreme Court's certiorari list of this morning—which presented few, if any, surprises—all tie into the question of judicial review. In the required constitutional law course, law students get smacked pretty hard with Marbury v Madison (and its necessary, if underappreciated, corollary McCulloch v Maryland) as somehow proving that judicial review is the job of the courts—and that it broad and deep. In the eighteenth century, no court was "supreme," in the sense that it could not be disregarded and/or routinely overruled by the legislative or executive branches of government.1 Until the nineteenth century (Marbury itself), neither was the US Supreme Court truly supreme. In politics, unlike in physics, potential energy of position dissipates over time; Marbury would not have been possible as late as McCulloch.

All of which leads into the contrast between Judge Roberts and Mr Brown (the political appointee who was formerly head of FEMA). The context of Marbury presents a rather disturbing harmony with Mr Brown's appointment.2 Recall that Marbury's beef was that his warrant—a warrant granted as a political sinecure—wasn't delivered, and that his principal qualification for the post was his political reliability. Recall, too, that the posts in question (justice of the peace and head of FEMA) are—or, at least, should be—nonpartisan and professional.

One might infer that one key distinction is that Judge Roberts has a career actually interacting with (and, as of late, being one of) the people doing the kind of job for which he has been nominated, and that Mr Brown… does not. That, however, would be a facile extension of "experience is everything." Instead, what it really points toward is a major problem with political appointments that are not subject to Senatorial approval. Cronyism is a lot harder to justify—particularly for a post with life tenure!—in the face of hearings in another branch of the government.

Bickel had it wrong with his advocacy of the judiciary as the "least dangerous branch." True, the judiciary has neither the control of the purse nor the imperative of the sword. Instead, the judiciary has the power of the pen. Virtually anyone with even a passable education knows who Miguel Saavedra de Cervantes is five hundred years later, but I seriously doubt that anyone other than a true scholar of the era could even name the preeminent swordsman of early sixteenth-century Spain. I think discounting the pen as being "least dangerous" was a bit shortsighted. Then, too, there is the danger arising from overly secure majorities who feel able to impose their will on everyone, confident that even if they as individuals are knocked from their lofty perches that they will be replaced by their social peers (remember, Jim Crow laws were passed by legislatures). If one must choose sides, I side with John Hart Ely: The courts are the only effective means of protecting excesses by a majority, and therefore must have sufficient power to make that role more than mere lip service.

In the end, I'd rather argue a case before a smart judge who listens to me, despite his initial disagreement with my position, than in front of an ideologue who agrees with me. The former is far more likely to write a lasting decision that will stand on its own, and withstand further attack (whether by courts or by the other branches of government), than is the latter. (Besides, I'm pretty good at swaying people whose minds are not closed.) Although we seem to have wandered from the opening sentence in this posting, what I'm getting at is this: The primary qualification for any high-level government position is the demonstrated ability—indeed, propensity—to disdain partisan loyalty and convenience when the facts require one to do so. Although I am a bit disturbed by some of Judge Roberts' advocacy papers when he was an inexperienced lawyer, his later record demonstrates that he at least listens—even if I don't agree with some of the results. Nobody really knows that much about Marbury's background, aside from assertions that he would remain loyal to Adams and the Federalists; that is not true of Brown.3

  1. Which leads to an observation on the differences between the Old World and the New World: In most of the Old World, part of the executive power actually resides in the legislative branch. The US was the first Western republic that combined its head of state and head of government; that "experiment" has not met with much approval in Europe or Asia or Oceania. In Africa, democracy is so nascent and fragile that one can't really judge. Only in Central and South America has the unitary executive gotten much attention, and even in this hemisphere that has frequently been little more than window-dressing on dictatorship.

    There is a decent argument that judicial review is actually less necessary with a unified executive, because clear separation of powers just isn't possible with a split executive—thereby leading to more intraexecutive conflicts. That, however, is for another time.

  2. Judge Roberts has the paper credentials for elevation to the Supreme Court. On the other hand, Mr Brown appears to have the paper credentials for elevation to County Dogcatcher—and not a whole lot more.
  3. Of course, that we're dealing with Bush II at all—almost like dealing with Adams II, although at least Adams I had a real formative role—just makes charges of cronyism that much more credible, even without recalling that Bush II.08's state got Bush II into office in the first place.