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June 07, 2005

What Should Courts Do?

Yesterday's Supreme Court case upholding federal law allowing the prosecution of medical marijuana users, despite California law to the contrary, is welcome legally, as a sign that there is not a majority to extend the "federalism" limits on Congress's general powers under the Commerce Clause.  See ScotusBlog for a whole multi-person blog fest on the specifics of the decision.

I'm of course pleased with the Court "Doing Nothing" as I've called the deference to legislative decisionmaking.  But the "nothing" label is a bit facetious.  A lot of people complain that we need a court system for checks and balances and I don't disagree.  But you don't need constitutional review of laws for the courts to be powerful players. 

First, the courts get to interpret the laws.   Most laws are ambiguous or may clash with other previously passed legislation, so courts have great power in interpreting them.  Congress then has the power to pass new legislation to overturn that interpretation, but that power to initially translate legislation into applied decisions is a lot of power for judges.

Courts can also limit executive authority which lacks legislative authorization.  Many abuses by police or by the military - a la Guantanamo - operate without legislative authorization and could be struck down on that basis.  Legislative leaders would be free to give explicit authorization but that would force tougher debates on how to define acceptable and unacceptable abuses.

Courts can also require equal application of the law.   If due process means anything, it's the application of the same laws applied in the same way to different people.  A variation on this is the principle that laws not enforced for years should be automatically overturned by the courts, since such occasional application is bound to be based on abuse and unfair application.  Most anti-sodomy laws could be overturned on that basis. 

All of these kinds of court decisions could be overturned by elected leaders but that's a proper system of checks and balances, where courts check legislative and executive power, but there is also a check on judicial power.  The core problem with constitutional decisions by courts today is there is no real check on them, short of the insanely cumbersome constitutional amendment process.   But remove constitutional review and courts would still have lots to keep them busy.

Posted by Nathan at June 7, 2005 07:38 AM