An End to Juristocracy: Fixing the Judicial System Has Nothing To Do With Packing Courts

The American Conservative, November 3, 2020
NOVEMBER 3, 2020|12:01 AM
It was refreshing to see the editors of the New York Times declare (“The Republican Party’s Supreme Court,” October 27): “The courts must not be in the position of resolving all of America’s political debates. But if Americans can agree on that, then they should be able to agree on mechanisms to reduce the Supreme Court’s power and influence in American life. As Justice Scalia would put it, a democracy in which the people’s will is repeatedly thwarted by a committee of unelected lawyers is not a democracy at all.”

What mechanisms are available? Surely not court-packing, the device of dictatorships and banana republics. Probably not devices for filtering appointees that insure the selection of nonentities who are not safe custodians of the values of procedural fairness and predictability that are within the judiciary’s special care. Not age limits, that would have prematurely deprived us of Justices Holmes and Brandeis and Judge Learned Hand.

What is instead required is judicious jurisdiction-stripping, directed less at the Supreme Court than at lower federal courts, together with limitations on and improvements of the process of adjudication designed to insure that there are no longer a thousand federal judges with field marshal’s batons in their knapsacks and that the process of adjudication is an informed one, taking place on a level playing field. Many of the necessary measures are discussed in a symposium edited by a Republican, the late Dean Roger Cramton of Cornell and a Democrat, Dean Paul Carrington of Duke published as Reforming the Court by Carolina Academic Press in 2006.

Here is a catalog of suggestions:

Restriction of Supreme Court discretionary jurisdiction by having a panel of senior appellate judges make up half the Supreme Court docket, resulting in fewer sensational cases (like the nine cases involving the nude dancing industry decided by the Supreme Court in recent years) and more cases requiring decision to reduce uncertainty.

Limiting the role of federal district courts by restricting them to grants of declaratory judgments, requiring the injunctions be granted only by the federal Courts of Appeal, with speedy and automatic en banc review of all injunctions, limiting national injunctions, and also limiting to public officials the parties who may bring constitutional challenges. In France and Germany, only the highest court can invalidate legislation; in England only the Supreme Court, the Court of Appeals, the Court of Criminal Appeals and the Scottish Court of Session.

Prohibiting the grant of temporary restraining orders (as was once proposed by Chief Justice Taft, no enemy of judicial power), and requiring challenges to statutes to be brought promptly after their enactment and long before their effective date.

Restricting subject matter jurisdiction over classes of cases, as was done with respect to attacks on state income taxes (the Tax Injunction Act), state public utility rate orders (the Johnson Act), and labor injunctions (the Norris-La Guardia Act). The last prevented the Army from being viewed as the enemy of organized labor during the run-up to the Second World War and made possible the G. I. Army. An earlier even less controversial example is the federal contempt statute of 1825 which prohibits the federal courts from punishing contempts by publication, a major safeguard for freedom of the press that is now taken for granted. One class of cases that might be excluded from federal district court jurisdiction are constitutional cases concerning family relationships, including the volatile areas of divorce, marriage, custody, contraception, child rearing and primary education, as to which state courts have the relevant experience.

Enforcing, extending, and improving existing restrictions on constitutional litigation, by requiring sworn complaints, detailed findings of fact and conclusions of law, the taking of sworn testimony subject to cross-examination in place of frequently judicially coerced stipulations, adequate time to respond to complaints after notice to state attorneys general as well as local officials, adequate rights of intervention, a showing of no failure to exhaust administrative or state court remedies, and a limitation of consent judgments to the remaining terms of state and local officers consenting to them.

The replacement of amici curiae practice magnifying the influence of Washington adversary groups by some form of notice and comment procedure like that in the federal Administrative Procedure Act, as was once proposed by the administrative law scholar Kenneth Culp Davis.

Repeal of the Civil Rights Attorneys Fees Act, which allows advocacy groups to intimidate small school districts and local governments with threats of enormous costs.

Requiring federal and state attorneys general to defend all constitutional litigation or provide an adequately funded and timely employed substitute counsel.

When constitutional litigation is no longer a sport played “on a cloth untrue, with a twisted cue, and elliptical billiard balls”, resort to it will decrease. It can still be conducted in state courts with Supreme Court review, but state courts have smaller geographic constituencies, are more amenable to political controls, and can dispose of cases on state grounds not producing national political convulsions.

‘Rights talk’ is, as the Harvard philosopher William Hocking once said, “psychologically a claim whose infringement is met with a resentment deeper than the injury would justify, a resentment that may amount to passion for which men will risk life and property as they would never do for an expediency.” The losers in legislative battles live to fight another day two years later and are not saddled with permanent defeats lasting a lifetime. The warnings of Felix Frankfurter and Learned Hand and legal scholars like Philip Kurland and Mary Ann Glendon against the consequences of ‘juristocracy’ have been abundantly realized.

The left-wing abuses of the Warren Court did not differ in type from those of the right-wing Wilhelmine judicial holdovers during the Weimar Republic or those of the Polish constitutional court today. The first of the neo-conservatives, Sidney Hook, in the heyday of the Warren Court in 1962 cautioned that “Death and the pendulum of history are sure to place on the bench not merely conservatives, but illiberals.” Earl Warren’s proudest achievement, the reapportionment cases against which Justices Frankfurter and Harlan vehemently protested, further aggravated by the second voting rights act, have produced and indeed demanded racial gerrymandering and legislatures dominated by political extremists.

The eloquent conclusion to the Times’ editorial comes seventy years too late, but should be heeded now.

George Liebmann is the president of the Library Company of the Baltimore Bar and the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars(Transaction Books).

Posted in: Criminal Justice, Judiciary and Legal Issues, Regulation, State and Local Politics, The Right

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