Dear Professor Goldman:
Thanks much for the very thoughtful email. I appreciate it greatly.
I of course agree with much that you wrote, in particular both the point that, and your examples showing that, the nature of the judges is the most fundamental problem. It is, moreover, a problem whose ramifications could get worse, as the courts continue to deal with questions of executive power. Of course, one would hope that the continuous scandals over executive misdeeds might cause even right wingers like Roberts, Thomas and Scalia to see the light. One could hope, but one doesn’t expect.
Nor are the presidential contenders' discussing either the question of executive power or the characteristics or views which should be possessed by judicial nominees. This really is terrible.
It is true, as you say, that liberals developed rules to constrain judges. But those rules, if they ever worked, no longer seem to be working. This is, of course, a point in favor of your view that it is the personae that count, not the claimed rules. On the other side, though, I nonetheless think that valuable effect would arise from rules requiring the Supreme Court to look at whether Congress (or some other appropriate body) has given extensive fact-based consideration to a matter and has reached a defensible result, and that permit the Court to act against rights-or-property-destroying actions that have not been amply considered on the basis of facts. (The recent medical device case which I posted about is a case in point. I shall post on the subject again.) For one result of such rules would be to give legal and media critics an opportunity to base strong criticism on the judiciary’s failure to follow its own rules on when and how to decide an issue. What is more, one knows that even liberal politicians and administrators on our side of things sometimes need to be reined in lest they act precipitously -- on the basis of incomplete or one sided information.
Many of your other points are ones I also agree with: the reliance on lobbyists for (non-objective) information, the results of this, the fact that there can be definitional problems of when is deliberation “extensive,” how to know that a given legislator really studied a problem, etc. But I think much of the problem would ‘come out in the wash,” so to speak, if rules for deciding an issue required extensive fact-based Congressional study rather than being based on the silliness of standing doctrines or political question doctrines or “Congress might have thought this or that” (though there is little evidence of it) doctrines. What I mean is something like Stewart’s “I know it when I see it” idea, an idea prevalent in much of life. When one sees extensive Congressional or agency consideration of both sides of a matter, one knows it. One can hardly escape knowing it.
So, although I do agree that, fundamentally, the people are the problem, I also think the right kind of rules for decisionmaking could be very helpful, especially because they would make for well grounded criticism -- which many judges would like to avoid (even if some like Thomas and Scalia seem not to give a damn) -- that is based on a failure of the judiciary to follow its own rules of decisionmaking.
Allow me to reiterate that I really appreciated your thoughtful email. One of my hopes in writing the original posting was that it might spark a discussion of its fundamental notions by people far more knowledgeable and up to date than I am. Your email is a start on what I think could prove fruitful if further carried on by persons who professionally follow the Supreme Court and the judiciary. Would you object if, in an effort to spark further discussion, I were to post your email, this response, and any reply you may make, and were to make the thread available to OpEd News (which carries my stuff) and, possibly to experts in constitutional matters?
From: Goldman, Alvin L
Date: Fri 4/18/2008 11:54 AM
Re: RE: Courts Should Insist That The Political Branches Do Their Jobs
Dear Dean Velvel,
I sympathize with your concerns but it might do well to remember that some of the key doctrines regarding judicial constraint were developed by liberals like Brandeis who were reacting to the wielding of the judicial axe that was destroying legislative efforts to promote social and economic reforms protective of the un-moneyed populace. As I see it, the problem is not so much the reluctance or willingness of the judiciary to review or interpret what Congress has adopted as it is the perspective and goals of those doing the reviewing. Congress, for example, in recent years has adopted reforms to encourage whistle blowing but the ever more conservative judiciary guts those reforms by reading them narrowly.
A major factor that leads to ill considered legislation in our times is the overwhelming efforts legislators must devote to campaign fund raising. That same preoccupation also causes too many of them to rely on the lobbyists to control the development of information and deliberation so that even when matters are studied with thoroughness (a strategy sometimes designed to kill progressive proposals or leave them withering on the vine), the study is far from objective. It seems to me that is where the system must be reformed.
Moreover, doesn't your proposal add one more device by which the judiciary can undercut laws it does not like and put its stamp of approval on the rest? How much study is extensive deliberation? What information is pertinent to weighing a particular bill? How do we know whether a legislator carefully weighed the 15 appendices to a sub-committee report or determined from the public debate, magazine articles, and books on the subject that the sub-committee's position was sound or unsound? Will there not be too great a range of reviewing discretion?
In sum, I don't think a change in process will alter the merits of the outcome; what is needed is a change in the persona.