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June 30, 2005

Supremes 2004 Term: Doing Nothing - Good Job!

If there was a theme of this past term, it was the Supreme Court stepping back from exercising its power to strike down legislation as unconstitutional.  It's often said that the Court follows the election returns, but that doesn't mean they necessarily follow whoever won the election.  Instead it means they pay attention to what those elections mean about the national mood, and the national mood is contentious and nasty.

And I think the Court decided that given the emerging toxicity of judicial nomination fights, scaling back its own imperital power might contribute to scaling back some of that contention.   Of course, the Court always wields power by interpreting the law -- see the Grokster decision for an example -- but those decisions can always be overruled by the Congress rewriting the law.

Look at this case summary by the ACLU for this last term and it's striking how many of the cases amounted to the Court saying to petitioners asking for a law to be struck down on constitutional grounds -- "not our job":

  • A police officer fired for selling pictures of himself nude-- no violation of the First Amendment.
  • A government meat advertising program with mandatory contributions from meatpackers-- no violation of the First Amendment.
  • Oklahoma law prohibiting members of other parties voting in a party's primary-- perfectly legal under the First Amendment.
  • Federal law requiring prisons to accomodate prisoners' religions-- no violation of the Establishment Clause.
  • State displaying Ten Commandments in a park around the state Capitol-- no violation of the Establishment Clause.
  • Drug sniffing dogs- no violation of the Fourth Amendment.
  • State law imposing rent control on gas station franchise agreements-- no violation of Fifth Amendment takings clause.
  • City eminent domain power to use land for private industry-- no violation of takings clause.
  • Federal drug law that prohibited private cultivation of marijuana-- no violation of limits on Congressional power.

The main exceptions where the Court used its constitutional review powers were the decision striking down the display of Commandments in courthouse, the decisions striking down state laws prohibiting out-of-state wineries from mailing wine into those states, and a number of decisions effecting the rights of criminal defendants and prisoners, including challenges to jury member discrimination, the ban on juvenile death sentences and the striking down of racial segregation of prisoners.

The Court being a bit more involved in criminal defendant rights makes sense, since, first, the Constitution is far more explicit on such matters and, second, there is good argument that unlike other areas where political forces should make those decisions, criminal defendants by definition are an unpopular minority whose rights may need some extra protection.

But that said, it is remarkable how much this term constituted a retreat from judicial activism by the Justices.   If you want a real solution to the conflict over judicial nominations, it's the Court continuing to scale back its overriding of democratically-approved laws.    The less it does, the less people will get agitated over who serves on the bench.

Of course, it will still matter, since legislative interpretations of the law have great effect, especially given how hard it is, given the Senate filibuster, to amend statutes to overturn a bad interpretation by the courts.  But at least such legislative correction of judicial action is possible, so it restores a sense that the nomination fight is not the one and only chance people have to effect what the courts decide.

Posted by Nathan at June 30, 2005 03:44 PM