« On not talking the Talk | Main | Federal Judicial Center Job Posting »

Thursday, October 11, 2018

Might progressives adopt judicial departmentalism?

Slate is running a debate between Daniel Hemel (Chicago) and Christopher Jon Sprigman (NYU) about whether progressives should abandon judicial supremacy and a belief in the Court and what it should replace that with. Hemel is more in favor of retaining faith in a (modified) Court, while Sprigman is more pessimistic.

Sprigman points to a clause in the Canadian Constitution that allows a national or provincial legislature to override a Supreme Court decision, by allowing a law to operate "notwithstanding" a court decision to the contrary. He proposes a law that allows Congress to override a Supreme Court decision (made in its appellate jurisdiction), then strip the federal courts of jurisdiction to hear cases resisting the overrides.

But I wonder if judicial departmentalism, which allows the other branches to ignore precedent and act on their own constitutional interpretations, gets us to the same place. Under a judicial departmentalist regime, Congress could reenact and the executive could continue to enforce a law that the Court had declared constitutionally invalid against anyone other than the party to the original case (who is protected by a judgment). Under judicial departmentalism, there is no need for an "override" of SCOTUS's decision, because the only binding effect of SCOTUS' decision on the other branches is its judgment prohibiting enforcement against the plaintiffs in that case. The problem remains that the courts must apply SCOTUS precedent in the challenge to the new law or subsequent enforcement efforts, so the result of new litigation over the same constitutional issue will be the same. But Sprigman's jurisdiction-stripping proposal may address that concern. Or the executive's repeated reassertion of the law's validity may cause the Court to yield to the other branches in the exchange, as happened during the New Deal (although for slightly different reasons, the idea remains the same).

I would also note Hemel's post arguing that "the court’s worst moments have been moments of weakness, not overexertions of strength." This echoes the argument by Suzanna Sherry (and subsequent micro-symposium) that the Court's greatest failures are when it is inactivist, standing by and declaring laws constitutionally valid.

Posted by Howard Wasserman on October 11, 2018 at 07:19 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


I’ve always found it somewhat puzzling that every sitting Justice senior to Gorsuch has used or joined the utterly empty “deference to democracy” argument-slash-rhetorical-jab in at least one major dissenting opinion Prime recent examples are the dissents in Obergefell and Janus.

As Prof. Wasserman notes, it is quite clear that nobody actually believes that it is wrong to strike down unconstitutional laws, or correct to strike down constitutional ones. The way I read them, always lurking in the background behind these claims is a faintly disguised accusation that the majority is acting in bad faith, because of course it is just *obvious* that anyone applying the law neutrally and impartially would reach the dissenters’ conclusion. It takes (or should take) little mental empathy to realize that this virtually never actually true, and I really wish justices in both sides would shelve this tiresome line for good.

Posted by: Shashakiro | Oct 16, 2018 5:33:25 PM

"the judiciary must intervene sometimes. But not all the time."

And therein lies the difficulty. I have yet to see an argument about the proper scope of the judicial role that identifies when the court should intervene, without morphing into questions of substantive disagreement. So CFPB has design problems so the court should intervene, but democracy is the answer to the scope of public accommodations laws and the court should not intervene. The only meaningful distinction is the substantive constitutional law at issue in each.

One of the things I like about judicial departmentalism is that it leaves the democratic branches room to operate in disagreement with the courts and the branches can battle it out in future litigation.

Posted by: Howard Wasserman | Oct 13, 2018 8:50:29 AM

You make some good points and what you’re saying is certainly worth thinking about. Lochner 2.0 is not what I wish for. I share your concerns on some of those issues. I think there’s less unconstitutional ways of resolving some of them by statute than liberals have chosen. (E.g., solve “money in politics” by creating a generous, mandatory funding regime for federal election candidates; CPFB is a noble idea in principle, but problematic in design).

For some of the other things you mention, there are genuine policy disagreements over whether and how to address them. I’d argue that representative democracy is the better mechanism for settling disputes over governance. Sometimes we won’t like democracy’s answer, and hopefully we have other states with other better policies we can look to or move to. Obviously this is a complex issue, and the judiciary must intervene sometimes. But not all the time. I can’t agree with those who advocate that, essentially, “judges should force the country to be governed by my ideology; democracy shouldn’t be allowed to say no to my ideas!”

Posted by: Reader | Oct 13, 2018 1:50:17 AM

Would that be the "right to democratic self government" through attempts to limit the influence of money in politics, ensure racial equality in voting regulations, ensure equal access to places of public accommodation, protect consumers from predatory banks, or ensure universal health care? It is no longer liberal courts declaring invalid conservative democratic policies; it is conservative courts declaring invalid liberal democratic policies. It is not only left-wingers wanting the judiciary to impose policy preferences on unwilling populations; Mitch McConnell did not pull out all these stops with respect to SCOTUS the past two years so SCOTUS would exercise *less* power over society.

Posted by: Howard Wasserman | Oct 13, 2018 12:13:55 AM

When thinking of institutional design, you need to think of a system that you would find acceptable if your political opponents were running it.

Me personally, I would like less judicial control of democracy and more power at the local and state levels. This way, contentious issues can be solved by elected representatives. There can be left wing and right wing states/localities, and you could take your pick where to move to. And we could all respect the democratically-legitimated, if contradictory, policy decisions across jurisdictions. We could call this idea “tolerance” actually.

Sadly, left wingers want the central govt/judiciary to impose their policy views on unwilling populations. They don’t really respect democracy when it produces policy outcomes they disagree with. You guys need to take deep breaths and accept the fact that some people don’t agree you and that they in fact have the right to democractic self government.

Posted by: Reader | Oct 12, 2018 11:17:14 PM

I'll bet if the old Jim Crow boys came back and tried to use this, progressives would suddenly be all against this idea.

Posted by: YesterdayIKilledAMammoth | Oct 11, 2018 11:17:39 PM

I wonder if the new found enthusiasm for limiting judicial supremacy extends to doubts about the legitimacy of universal injunctions, such as the ones against the Trump Administration's so-called "travel bans?"

Posted by: Douglas Levene | Oct 11, 2018 9:54:14 PM


The West Virgina Supreme Court just ruled their own impeachment trials unconstitutional. Does anyone really think the SCOTUS is just going to roll over and die because Congress said it should? The verbal fawning the judicial branch pays to the legislative branch is mostly public relations amounting to nothing more than lip service. When the chips are down and the robes are cast aside, we see that the legal profession is just as corrupted by the lust for power as any other human being can be.

The question is whether we have a democracy or whether we have an oligarchy of judges? The precise form by which the judiciary is brought to heel is less important than the fact it heels at all.

Posted by: James | Oct 11, 2018 9:05:35 PM

Just to illustrate it from the case of Nixon :

Rule 17(c) to the federal rules of criminal procedure , dictates as follows :

(c) Producing Documents and Objects.

(1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

So , nothing concerning specifically the president , but the Supreme court , ruled so , I quote :

Although the courts will afford the utmost deference to Presidential acts in the performance of an Art. II function, United States v. Burr, 25 F. Cas. 187, 190, 191-192 (No. 14,694), when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice .


Posted by: El roam | Oct 11, 2018 8:45:28 PM

Interesting , but really bit messy here . We refer to " law " as a whole , the whole act or code . but , it is not necessarily so . The court can strike down , one section , one provision ( finding it unconstitutional ) . The court can also , stipulate or re stipulate the law ( or ordering the parliament to do it ) . The court can even " read in " or order , what should be " read in " in certain provision .

However , one can't separate the law from precedents or decisions of the court . The precedent and the law are inseparable entity . For the law , has no meaning if it is not implied and concretely and correctly on one case . For cases , exceeds frequently the law ( due to technological advances for example , see the appearance of the Internet ) so , the court , must catch up with life and technology , preceding so the lawmaker . They ( courts )must prevail , whatsoever . They can't wait for legislation .

As such , whatsoever , the judge or the court , is effectively functioning as legislator whatsoever ( not formally of course ) . We can illustrate it :

Nothing in federal rules for example ( see the case of Nixon ) suggested , that the president , must disclose evidences or records , during criminal process . Yet , the Supreme court , made a sort of " read in " to the rules , deciding so , that in such case of criminal proceedings , there is no " executive privilege " and the president , must hand over records .

So, law , and interpretation of it , are one . Are inseparable . And the meaning of precedent , is that :

In the same circumstances , notwithstanding who are the fresh sides or litigants , you must imply the same doctrine , and not reach the court , over and over of course . This is really baseless with all due respect . And the precedent means : that ,that is how the law is implied . So , the law , is what the court decides it is . The legislator legislates , but that doesn't mean necessarily , that this is the law . For the law without a case ( case in the broader meaning of it ) without purpose and interpretation any way , has no meaning simply. Just senseless words .

Or as prof Aharon Barak ( the ex president of the Israeli Supreme court ) was preaching and saying :

The psychoanalysis is made to the law , not to the lawmaker .


Posted by: El roam | Oct 11, 2018 8:37:38 PM

Post a comment