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June 20, 2003

Why Judicial Review is Bad

One more round on my personal hobbyhorse, but I think it's crucial for progressives to recognize why their attachment to judicial power is so completely misguided. So here are some comments and my responses from my recent Consistency on Gay Rights? post:

Noting that I had worked hard in organizing against the anti-immigrant Prop 187 initiative in California, largely struck down by the federal courts, Josh asked "How does your theory of judicial restraint play out in Prop 187?" My answer:

How does Prop 187 organizing fit into my theory? Very directly. The best response to Prop 187 was not litigation but massive voter registration, legalization campaigns, and political pressure that tossed Pete Wilson out of office, elected a latino speaker of the assembly, latino lieutenant governor, and forced passage of a range of pro-immigrant legislation, such as banning "english-only" policies in the workplace. The legislature voted to give driver's license to undocumented workers last year (which was vetoed by Davis), so en those votes on pretty controversial issues, I'm quite confident that the draconian Prop 187 provisions would have been repealed.

And arguably, the backlash in the pro-immigrant direction might have been even stronger if Prop 187 had actually been implemented fully. So the price of judicial "massaging" of bad legislation often means less counter-mobilization to get rid of those who originally promoted it.

Henry then asked if the Courts don't review laws for their constitutionality, what role do they have? My answer:

What is the role of the courts? To interpret laws passed by Congress, not to overturn them. That's what courts do most of the time. Constitutional cases are a rather small part of their workload, even if it's the one that gets the most media attention.

Why should unelected judges be able to second-guess democratic decisions? What reason is there to believe that judges will be more compassionate or more protective of rights than elected leaders?

Then Andy got to the nub of defenders of judicial review: "You don't see the value of having judicially and legally trained people with aren't worried about bowing to any power bases and who see allegiance to Constitutional principles first and foremost as a check against runaway public opinion and power-hungry legislators sacrificing the interests of an unpopular few in order to get the votes of the many?" My lengthier answer:

First, the Supreme Court doesn't make its decisions based on "constitutional scholarship", since all members have fine training, yet seem to come to diametrically opposite conclusions on a regular basis-- note the series of 5-4 voting splits in recent years.

I see little value in appointed ideologues imposing their views on the population for the limits of their lifespan. Why not just hand our whole government to benevolent dictators if "independence" is such a value?

The Supreme Court has as often destroyed progressive rights as protected them. They promoted slavery in the pre-Civil War Dred Scott decision, obliterated civil rights laws during the Reconstruction era and its aftermath, obliterated labor laws protecting labor rights in the early 20th century, and now with the Rehnquist Court have repeatedly struck down rights for the disabled, religious freedom, age discrimination and a variety of other areas in deference to "states rights."

So no, I see little value for individual or civil rights in letting lose the biases of court members.

Where is the check and balance on their decisions?

Amending the Constitution? Ridiculously hard with two-thirds votes in Congress and 3/4 of the state legislatures. Impeachment? Something I favor as a more regular check on the courts, but most people want to restrict it just to actual crimes by judges, not for bad court decisions.

The best check and balance for freedom is exactly how the national government was designed-- which included no specific provision for judicial review of laws. The idea was that by having two houses of Congress and a President with a veto, the people themselves would be able to check any runaway passions, while multiple factions would encourage negotiation between many groups to protect minority rights.

If bad judicial decisions could be more easily overturned, say by a straight two-thirds vote of Congress, much like overriding a Presidential veto, I might be more supportive of judicial review as a check. But as it stands now, it is just an antidemocratic eyesore in our politics.

For those who haven't checked it out, my longer discourse on the sorry, pathetic history of Surpreme Court constitutional malfeasance is located here, a piece which was written to advocate impeaching the rightwing members of the Court.

Posted by Nathan at June 20, 2003 01:30 PM