I think Ilya has the better argument, Orin. Your view seems hopelessly naive in these days when most Americans would agree that the Congress represents money, not the true yearning of the American people.

So long as our legislative system remains bought and sold -- and only panders to American voters on hot-button social issues -- judicial review becomes increasingly necessary.

Now if we could just blink our eyes, click our heels, and return to the days when elected officials actually represented the interests of the people, you might have a point. But sadly, most people know we're no only nowhere near that these days, but we're actually going further and further into the corporate "bought and sold" or "capture" theory of democratic lawmaking.

Factor in reality, and Ilya has you here, hands down. In theory though, some might still voice what you're saying, until they get a good look at the current American political system... (That's why theorists and academics can be smart as they like, but with no grounding in reality, they're ultimately useless. See the Bush administration promises and policies, for starters. Sometimes you really do need to listen to the people on the ground getting the work done, and not the "it should be like this" speculators who ultimately want to bear no responsibility for how things turn out.)

Gary,

I'm curious -- are you assuming that judges would only strike down the laws that to you don't reflect the consent of the governed? What are the laws reflecting "hot button" issues that you think judges should invalidate? I don't mean to put you on the spot, but I'm interested in knowing your take on this.

Grange95,

I think Ilya and I agree in complete agreement about what judges should do when the law is clear and uncontested. No one disagrees about that. The question is what to do when the legal theory used to strike down the law is highly contested and very controversial. I didn't mean to stack the deck; I just meant to identify the disagreement between Ilya and I, at least as I understand it.

In my view, we need to compare the democratic legitimacy of the law in two systems: [(1)] a system in which judges adopt a generally respectful attitude towards the products of the legislative process; and [(2)], a system in which judges use highly contested theories of constitutional interpretation to strike down lots of laws. In my view, the democratic legitimacy of the former system is very likely to be significantly greater than that of the latter.

What about the relative democratic legitimacy of a system (let's call it system (3)) in which (1) is true but judges apply highly contested theories of constitutional interpretation to accomplish (1)? This seems similar to situations Ilya (and others) are considering involving campaign finance reform, commerce clause cases or eminent domain.

What are the laws reflecting "hot button" issues that you think judges should invalidate?

Aha! You read much too much into this: "So long as our legislative system remains bought and sold -- and only panders to American voters on hot-button social issues -- judicial review becomes increasingly necessary."

Where did I say I think "Judges should invalidate laws reflecting hot button issues?" I merely observed that the public is generally uneducated and not in the least a practical participant in influencing their legislators -- except perhaps on those hot-button social issues (figure it out yourself, not too hard) where the politicians tend to pander to this side or the other.

Now if you're making teh point that our judicial figures -- once thought to be shielded from political and financial pressures -- are no better in the "bought-and-sold" game than our more active legislative politicians, you might be more convincing in pursuing such angles.

As it stands though, the "legislative bodies represent the will of the people and therefore should be respected by the judiciary" is for naught -- that ship has sailed my friend, the bus has left the station, it's an idea riding on final fumes, etc.

I hope you get the idea without my going into further detail. Here, did you read this comment also, " Instead, we've got a sausage factory, and an active judiciary is one of the last lines of defense against the people just scrapping the system "

Of course, I'm curious your take on Bushv.Gore, or Gorev.Bush or whatever it was that had the Supreme Court fudging the rules in helping determine our current president. Should the Supremes have respected the state judiciary, which presumably was following Florida legislative rules set up as "the will of the people"?

See, when everybody knows legislature's but a behind-the-scenes money game and sees judicial review so inconsistantly applied, your argument about respecting teh will of the people just falls short, my friend. Reality is a b*tch like that, and there's nothing worse than urging trust in the legislative process when everyone pretty much knows the game as it's currently played is stacked.

The general divide between assigning deference to a messy, inscrutable but more inclusive process and or to a select group of experts is a pretty common one.

In economics, do you give deference to the market or technocrat industrialists? In politics, do you give up freedom to the strong man with good ideas or take a chance on a representative form of government? Is history made up of great men present at great events, or the steady march of faceless popular movements?

I think deferring to judges or to legislative process falls within this timeless argument. I also think people generally have a bias against messy, inscrutable processes that defy easy description and easy manipulation.

Orin's argument is the classic and intellectually-consistent "judicial restraint" argument. It is no way "conservative" however (in the way we understand "conservatives" today) -- nor is it "liberal." At various times in the last century, both liberal and conservative politicians and judges (who are, in many cases, just politicians in a lighter way) have latched on to the theory when it was politically feasible to them. Thus, liberals would have agreed with every word Orin wrote in the early part of that century. Conservatives would have agreed in the latter part of that century.

Today, however, it seems that very few politicians actually believe what Orin is saying (some, perhaps many, judges do). When Republicans talk about "strict construction" and "not legislating from the bench", I think we all agree that that only applies when they disagree with the results. We can debate the intellectual dishonesty of Democratic politicians re judicial views, but Democratic politicians have not articulated any good soundbites for their views on judges. Rather, the deal seems to be that the base understands that judges will be appointed who believe in upholding Roe &Casey (for any reason -- it doesn't really matter) and the rest of their judicial philosophy can be whatever it wants to be. This is somewhat represented by the diversity of views of Clinton appointees who are all over the map. Compared to Carter appointees who seemed to be, for the most part, classic liberal judges in the Brennan mold (although most try/ied to stay constrained by Supreme Court precedent).

I think Ilya and I agree in complete agreement about what judges should do when the law is clear and uncontested.

But, in practice, a law doesn't have to be in any way unclear in order to be contested. All that is required is that somebody in a position to contest it see some gain in doing so. Perhaps because it clearly prohibits something they want done, or clearly authorizes something they oppose.

We need a definintion of "clear" that's more than just looking to see if people disagree.

For instance, the commerce clause is pretty clear, and pretty clearly does NOT say what the Court has read it to mean since Wickard. For that matter, it's fairly difficult to square the Sixth amendment's "all criminal prosecutions" with the Court's "petty offense" jurisprudence abolishing the right to jury trials in many such prosecutions.

Or coming from the other direction, we might note the eternal efforts of tax resisters to pretend that the 16th amendment doesn't really mean that their incomes can be taxed.

No, if the law were clear AND uncontested, we know what judges would do: Nothing, because the matter wouldn't be before them...

Gary Anderson,

Of course, I'm curious your take on Bushv.Gore, or Gorev.Bush or whatever it was that had the Supreme Court fudging the rules in helping determine our current president. Should the Supremes have respected the state judiciary, which presumably was following Florida legislative rules set up as "the will of the people"?

Great example. The Florida Supreme Court reversed the trial judge and set up a new process with standards it created it order to resolve the election. There was no Florida law specifying any such procedures or deliniating any such standards. It really was a classic case of "legislating from the bench".

I certainly do not think Bush v Gore was a great decision, although the outcome was correct in that it left the trial judges decision intact applying the statutes as written and it left state law as enacted by the legislature as the controlling law. It also headed off a move by the State Legislature to use its plenipoteniary power under the constitution to directly select Florida's electors, thus nullifying the Florida Supreme Courts usupation of legislative power.

Since this is the current hot thread and the thread I was commenting on on this topic seems to already be relegated to obscurity, I'm reposting it here:

A commenter responded to my comment that "consent of the governed," per Lysander Spooner, is a total legal fiction, and that requiring a supermajority (along with bringing most government down to the very local level where "consent of the governed" actually means something, and Randy Barnett's/Lysander Spooner's "presumption of liberty" in the context of judicial review) is one legitimate response to that truth, thusly: "So do we need 90% of people to agree there's a self defense exception, because someone defending themself is going to deprive the attacker of his freedom by taking his life? Or do we need 90% of people to agree that there's no self defense exception, because we're going to take away the freedom of someone who kills in self defense as punishment?"

To which I reply: You would need 90% of people to agree that there's no self defense exception, because the relevant question is what government proposes to do (in this case jail someone who's killed somone else in self-defense), that it really has no special inherent authority to do. (As Lysander Spooner argued in his "No Treason: The Constitution of No Authority," the government has no more inherent authority to enforce natural rights -- or to do anything else -- than anyone else in society.) I would have to say the same about the abortion question (even though I detest abortion), because the primary question is not the rights of the unborn child, but the government's proposal to put women and abortion doctors in jail for committing abortion. For that you should indeed need a supermajority (80% might work instead of 90%. Both numbers are just as arbitrary as 51%.) Of course, in determining whether they're going to put women and abortion doctors in jail for committing abortion by a supermajority vote, a primary question for voters should be the natural rights of the unborn child.

True enough. Although ignoring the prevailing sentiments of the legal community regarding the content of the law is a time-tested method of losing lawsuits, and can even land you in jail. Just ask the tax protesters.

GaryAnderson,

I do think if a court is going to decide a presidential election that it should be the US Supreme Court, not the Florida Supreme Court. But I would have preferred that if it couldn't stay out of court at all, it at least stayed in the trial court. The trial court judgement left itself to applying the facts to state law, without trying to modify the law, inorder to resolve any questions about the election. The Florida Supreme Court took it upon itself to decide that existing law was inadequate, so it tore it up and wrote new law.

Kazinski -- Florida law specifically delegated such authority to the Courts and gave the Court very broad authority to fashion equitable remedies of just about any character. The Florida Supreme Court may have been wrong in their understanding of the law and in reversing the trial judge in a 4-3 decision. But that was a matter of Florida law, not federal law. I know that it must blow your mind that legislators would actually pass the buck to judges to deal with individual problems in particular elections, but that was the case. No one seriously disputes that the main rationale for Bush v. Gore (the equal protection rationale) was silly and contrary to precedent, especially the precedent developed by the very judges who signed that "per curiam" opinion. The second rationale -- the one adopted by the Chief along with Scalia &Thomas -- at least has some superficial appeal. But that's about it -- the Constitution by delegating the choosing of electors to the state "legislatures" certainly does not preclude the state legislatures from their own law that mandates courts to apply flexible standards in individual cases. Query why AMK and SDO didn't sign that opinion -- because they knew that the argument was wrong. States rights, my ass.

The great irony of it all is that Bush would have ended up winning Florida regardless, the Supreme Court had to basically act in an outrageous, lawless and absurdly partisan fashion for no reason.

I believe the Supreme Court also instructed the Florida courts to go ahead and read the laws next time. And if you want to get into equal protection, there is a case to be made. Every time you re-canvass a districts votes, you find more votes. Assume you find them in equal proportion to the original. In this fantasy district, it is 55/45 for Gore. Every time you find another 100 votes that were previously discarded, you find 55 for Gore and 45 for Bush.

Well in that case, a district of similar population that is 55/45 Bush should also be re-canvassed over and over. But this is not what Gore wanted. He wanted to keep scouring the barrel for his own votes.

And the idea of an ordered system that protects liberties, especially the right to industry and property, is fundamentally conservative. Just because most self-proclaimed conservatives today have no appreciation of this fact has no more bearing on Conservatism the intellectual ideology than does Castro's Catholicism have on the atheism in Marxism.

Orin frames the debate as: "The question is what to do when the legal theory used to strike down the law is highly contested and very controversial."

first, lets emend that to include "or uphold the law".

"a system in which judges adopt a generally respectful attitude towards the products of the legislative process"

Such a system is itself controversial.

Randy Barnett framed the question nicely: should judges place the burden on the government to demonstrate that the law is constitutional or so should judges place the burden on the person to demonstrate that the law is unconstitutional.

Let's not forget that it was not the Constitution that provided for any judicial review at all... /ominous

Gary,

If you would like your privileges to comment restored, send me an e-mail and we can discuss this.

I'm not sure that either system is superior to the other.

First, let's define legitimacy as the willingness to accept as final and binding a decision that the person does not agree with.

I suspect that the legitimacy of a given judicial decision will rest on two things- first, the persuasiveness of the argument made in the opinion. Second, the perception that the court is fulfilling its function of judicial review in an orderly, predictable manner.

The legitimacy of the system as a whole will then be the sum of the legitimacy of individual decisions.

The persuasiveness of the opinion is dependent on the writer. Many of the practices of the courts (such as stare decisis, the black robes, etc.) are designed to encourage respect for the system.

Remember, all court decisions are by their nature contested, and only the most difficult ones tend to make it to the Supreme Court. Any rationale for a given decision is sure to be highly contested at the time.

In my view, the democratic legitimacy of the former system is very likely to be significantly greater than that of the latter. (bold added)

I don't understand why it is only "very likely" to be more democratically legitimate. Why can't you just say that it is more legitimate, period.

If Somin had his way 10 times, and you had your way 10 times in random trials, would it turn out that in some cases, Somin's system would be more democratically legitimate? If so, when and why? If not, shouldn't you ditch the qualifier "very likely"?

However, I'm not aware of a general principle of federal constitutional law that lets the U.S. Supreme Court reverse state law interpretrations of state law on that basis

Orin, isn't that a bit hasty? Certainly there is a specific rule: I point to the 'text' of Article II, Section I that creates a Federal Constitutional requirement that the electors be appointed in a manner prescribed by the state legislature.

This is precisely the argument made by the Bush team


start on page 28 and follow the argument in detail

Orin,

Let me refine my point. You seem to be saying that (1) where the constitutional theory is well-accepted, the Court should just apply it as normal but (2) where the constitutional theory is debatable, there should be an extra deference to the legislature, such that even a majority view supporting the theory that leads to invalidation should not justify the majority in voting for invalidation. Is that right?

If so, I wonder where you draw the line between "debatable" and "not debatable." Does the deference attach if the vote, on the Justices' views of the merits, would be 5-4 but not 9-0? What about 8-1? What about 8-1 with a prior composition of the Court but now 9-0? What about 9-0 but there is much academic literature to the contrary? What about 9-0 but there is some academic literature to the contrary?

My point is that we can't meanigfully find some special deference that attaches only when a constitutional theory is debatable and we therefore suspect the view is policy driven. That means that the Justices should just vote in accordance with the theory that they find meritorious.

Of course, the Justices can factor other Justices' views into what they find meritorious. And the political question is itself a theory that a Justice may find meritorious and finds to counsel against invalidation. But I didn't read your post as making the simple point that standing doctrines are passive virtues. Is that all you were saying?