In Loving v. Virginia, the 1967 case which found race-based marriage bans unconstitutional, Chief Justice Earl Warren built a 9-0 consensus—just as he’d done years earlier in Brown vs. Board of Education. He knew that a country divided by race ought to be united, if possible, by a Supreme Court mindful of fundamental values—even if the Court was, as the constitution requires, overturning the will of the majority.It turns out that the rule he devises here isn't that the Court should take such radical action only when there is in fact a 9-0 consensus that such action is necessary. That would be a great rule, one I'd be happy to support, as it would be a limiting principle on a fairly radical power of the Court. We have similar supermajority standards for the other more radical powers of the Federal government: to amend the Constitution or to enter into a treaty that binds the United States both require legislative supermajorities.
In fact, this suggestion strikes me as much better than the one currently under discussion, i.e. to make Supreme Court Justices' tenure contingent on continuing Congressional approval of them. A supermajority requirement doesn't fiddle with the balance of power between the branches, and further, one of the good things about the current structure is that it cools democratic passion by continuing the input of previous administrations on current decisions. That represents a good power-sharing function, and often the Court is the only hope of the minority currently out of power that its views will still be considered by the party currently holding the levers. I should not wish to see that function change.
On the other hand, a supermajoirty requirement could be structured to restrain Court radicalism very easily. Any time that a Court ruling would require us to believe that the People had ratified a right without realizing it, they should require a 9-0 consensus. Any time we have to assume that laws that have continued to be in force without interruption since the ratification of an amendment were really invalidated by that amendment, there should be a 9-0 consensus. And perhaps any time multiple state constitutions have to be overturned, there should be a smaller supermajority -- 7-2, perhaps -- given that the state constitutional amendment process is already a supermajority process (and that anyone can escape a state constitution they find oppressive by simply moving to another state).
Unfortunately, that's not Dr. Michaelson's point at all. It's such a good point, though, I thought it deserved its own post.
I'd be VERY careful about what you wish for. After all, the Heller decision was only a 5-4 majority determining that the right to bear arms was a personal right and not a "collective" right (whatever the hell THAT is supposed to mean). And that overturned state (and locality) laws.
ReplyDeleteI'm willing to abide by the possible loss of Heller in return for a greater degree of stability for the republic. Most of my life was before Heller, and only once did I live anywhere that my 2nd Amendment rights were constrained -- and I could have elected to live in Virginia instead of Maryland (as I did, the next year).
ReplyDeleteI prefer an America in which we can all live a happy and honorable life in spite of our disagreements. I'd be willing to let a few dark blue places have their gun control, in exchange for freedom to uphold the traditional moral standards in other places.
Sure, but it never seems to work out that way, does it? Instead we see the inexorable creep of leftism and tyranny, inch by inch, as the incrementalist strategy prescribes. For them, it's all going to plan, what's in it for them to compromise at all?
ReplyDeleteI'd agree with the supermajority amendment as part of a package of amendments that fix a number of issues, like the commerce clause and 14th amendment.
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