The Supreme Court of the United States
In recent years, I have often served as a critic of the Court. My concerns, however, reach back to earlier times, and may focus on the enlarged sense of itself the Court acquired under the leadership of William Howard Taft, who moved the institution into a Greek temple and gave it power to choose its cases. While it often acts professionally as a court of law on lesser matters, its arrogance in imposing notions of natural law on the lesser organs of government have been at odds with the nation�s democratic tradition. It held no commission to constitutionalize sexual mores, however just may be the claim to the Right of Choice. Its constitutionalization of �money is speech,� �one man-one vote,� and the right to defame anonymously have made it almost impossible to elect the representatives of a self-governing people honorably. Our Imperial First Amendment. And no one has made a coherent defense of its decision to appoint President Bush in 2000. The Right to Self Government after Bush v. Gore (with H. Jefferson Powell). And even on lesser matters, it is sometimes recklessly indifferent to legal texts. On no authority but its own, it reduced the size of civil juries in federal courts by half. And it has re-written the Federal Arbitration Act of 1925 to make it an instrument of economic oppression, overruling its own decisions in order to do so. These are but two of its decisions on matters known to me that have had pervasive adverse consequences. My 1998 book, Stewards of Democracy, is the most comprehensive presentation of my assessment of the Court; it is a celebration of the modesty and self-restraint manifested in the careers of Thomas Cooley in the 19th century, and by Louis Brandeis, Learned Hand, and Byron White in the 20th.
This noisome conduct is that of a group of elders who remain in their temple for decades, and long past the time when they can be expected to retain familiarity with the realities of life. To be sure, there have been Justices who were noted for their wisdom even in their fourth decade on the Court. But even they were not universally admired by their contemporaries and they lived before the time when, as now, a substantial portion of their number can be expected to reach the age of 100. As a consequence, appointments to the Court have become the most visibly crucial decisions by the President and Senate. Given the importance of the political issues the Court presumes to decide, one can hardly ask citizens on all sides of issues not to contest judicial appointments. The Court very much needs a system for rotating its members off the throne of so much power. Roger Cramton and I have drafted a proposal addressing this problem that has been endorsed "in principle" by an illustrious group. Supreme Court Renewal Act. The scheme was the subject of a conference at Duke in April 2005 and of a symposium of papers that has now been published by Carolina Academic Press. Reforming the Court. Roger represented us at another conference on the subject at Berkeley in October 2006. .
Also, I hold the Court responsible for the outcome of the 2000 and 2004 Presidential elections. While I unhesitatingly affirm the rights of women to abort fetuses, Roe v. Wade was a very unfortunate decision. By casting the right to abortion as a principle of natural law on no legitimating constitutional text, the Court expressed disdain for the deeply felt sentiments of many citizens. It called the Right to Life Movement into being at a time when state legislatures were moving to resolve the problem on terms favorable to Choice. The result was to make it harder for women in many communities to exercise their right, and elevated the Presidential responsibility for the selection of Justices to a primary basis for the votes of many citizens in Presidential elections. Gay rights have been advancing steadily in recent decades in the minds of most people, and this has been reflected in legislation. But their constitutionalization by the Supreme Judicial Court of Massachusetts offended many having contrary religious views and evoked a political reaction placing the issue at the top of the list in the minds of many voters in 2004 fearing that the U.S. Supreme Court would press the issue further. If the social security system were wrecked, the nation were to continue to pursue the President George W. Bush's imperial impulse, or if the environment is left unprotected. and the public fisc is sunk by tax cuts, these would all be tertiary consequences of Roe v. Wade. In 2008, the Court committed a similar misdeed in overreaching in the opposite political direction by extravagant overextension of the Second Amendment right to bear arms. As eminent judges Richard Posner and Jay Wilkinson have proclaimed, that decision is a right wing coup on the same scale as Roe v. Wade and has no foundation in the text of the Constitution.
I am an ardent believer in the virtue of judicial independence but I perceive that the Court is a premier demonstration that too much of a good thing is too much. As Judge Posner has correctly put it, the Court is not a judicial institution so much as it is a superlegislature. The absolute independence of the Court that has evolved since the Court-packing discourse of the 1930s and the employment of the 101st airborne division to enforce its judgment in Little Rock in 1956 needs to be adjusted. In addition to term limits of some kind, I favor other reforms. Two proposals that I will publish with Roger Cramton in 2009 involve the extension of the judicial discipline system now in place for Article III judges of lower rank to correct also the behavior of Justices and the replacement of the "cert pool" of law clerks with a large panel of senior circuit judges. In addition, I strongly favor the appointment of Justices with real experience with politics; Harriet Miers had in my view better credentials for appointment to the Court than most and perhaps all of the present Justices: she had not only been a partner in a law firm of size, but had hands-on experience with politics at local, state, and federal levels. The changes I favor are not cost-free or without secondary consequences, but they would help restore the Court to a more modest political status more becoming to professional judges and more respectful of representative democracy..
In February 2009, I joined with others in making four proposals to Congress and the Department of Justice for adjustments in the law governing the Court. See Four Proposals for a Judiciary Act. These include a system of regular biennial appointments, an orderly system for retiring Justices no longer able to perform, term limits for the Chief Justiceship, and replacement of the "cert pool" of law clerks with a panel of experienced circuit judges empowered to grant a substantial number of certiorari petitions each year. Serious consideration of any of these proposals by Congress might serve to remind the Justices of a measure of accountability to the other branches of the federal government. They were seriously discussed at a conference at George Washington University on November 20, 2009 and are subjects of my essays listed below. The interest of Congress in the subject has been elevated by the Court's arrogant re-writing of Federal Rules of Civil Procedure in 2007 and 2009 to weaken the system of private enforcement of public law, and then by its "devastating" extension in 2010 of the principle that money is speech to assure the right of corporations to control elected officials.
In May 2010, I addressed a national conference on procedural rules summoned by the Judicial Conference of the United States. I observed that the Court has become a member of the United States Chamber of Commerce. And on that account, it has emasculated the Federal Rules of Civil Procedure to weaken the system of private enforcement of public law on which our political system is heavily dependent. In doing so, it has manifested disregard for the rulemaking process established in 1936. My essay on this subject, Politics and Civil Procedure Rulemaking, will be published in the Duke Law Journal later in 2010. I have also made in the National Law Journal the related observation that Justice Scalia's objection, expressed in two concurring opinions in 2010, to any reference to the official legislative history published as committee notes, is simply indefensible. He proclaims his fidelity to the unexpressed Original Intent of those who wrote the Constitution but rejects expressions of intent by those drafting other laws that he is obligated to enforce.
My published work on this general theme includes:
Political Questions: The Judicial Check on the Executive, 42 Va. L. Rev. 175 (1956)
A Senate of Five, 23 Georgia L. Rev. 859 (1989)
Meaning and Professionalism in American Law, 10 Constitutional Commentary 297 (1993)
Contract and Jurisdiction, 1996 Supreme Court Review 331 (1997) (with Paul Haagen)
Stewards of Democracy: Law as a Public Profession (Westview Press, 1998)
Restoring Vitality to State and Local Politics: Correcting the Excessive Independence of the Supreme Court, 50 Ala. L. Rev. 397 (1999)
Our Imperial First Amendment, 34 U. Richmond L. Rev. 1167 (2000)
The Right to Self Government after Bush v. Gore, http://www.law.duke.edu/pub/selfgov (with H. Jefferson Powell, December 29, 2001)
The Evils of Longevity, 7 Green Bag 2d 125 (2004)
Reflections on Brown, 20 J. App. Practice & Process 101 (2004)
Renewing the Supreme Court (with Roger Cramton) in Reforming the Supreme Court (2006) republished at http://www.humboldt-forum-recht.de/4-2006/
Congress and the Court, in Reforming the Supreme Court (2006)
Original Sin and Judicial Independence, 50 William & Mary L. Rev 1105 (2009) (with Cramton)
New York Times, April 20, 2009, re Supreme Court reform
Judicial Independence in Excess, 94 Cornell L. Rev. 587 (2009)(with Cramton)
No Such Thing As A Corporate Citizen, National Law Journal, January 18, 2010
Disdain for Legislative
History, National Law Journal, August 11, 2010