Legal Commentary

Bemoaning The "Activist" Court

By Big Tent Democrat

Ross Douthat, in classic Claude Rains style, is "shocked, shocked" to discover the Supreme Court is an active part of the political process. Why it took Douthat this long to discover that the current conservative Court is just as political and activist as, well, all the others, is beyond me. But his "prescriptions" for the problem seem less than well thought out:

There are bipartisan ways that the Court could be reined in, and the legislative branch reinvigorated. Shugerman, Caminker and others have proposed a supermajority rule, for instance, requiring a 6-to-3 vote to overturn federal legislation. . . . Absent such constraints, the best reform would be term limits for the Justices, instead of lifetime tenure. Give them 12 years, rotated on a regular schedule, and then send them on their way.

So Douthat thinks a 6-3 decision would be less "activist" than a 5-4 decision? Why for heavens sake? (For Douthat's information, Roe was decided by a 7-2 vote. Most of the Warren Court decisions conservatives like Douthat hate had at least 7 votes.) And how term limits would help in Douthat's project is beyond me. Why would a term limited Justice be any less likely to be "activist" than a life tenured one? More . .

Douthat's proposals are senseless. They also presumably require constitutional amendments. I stick to my long held view - let's stop pretending that the Supreme Court is not a political institution and insist that specific answers be provided by the President's judicial nominees to the questions the Senate wants answers to. Reinvigorating in a real way the Senate's advise and consent role (something conservatives like Douthat vehemently argued against during Republican Presidencies) is what is required. That is the way to make the Supreme Court responsive to the People - by making them respond to the questions of the People's representatives in the judicial naming process.

This requires nothing more than actually following the Constitution - having the Senate actually advise and consent on judicial nominees. But conservatives like Douthat have railed against this forever. Maybe now is the time for them to rethink their senseless views on this.

Speaking for me only

Full post as published by TalkLeft on June 02, 2009 (boomark / email).