More in the continuing series as The Monk answers the questions that John Roberts, in many cases, cannot. These questions are the ones Chuck Schumer wants Roberts to answer to Schumer's satisfaction.
As I noted before, in many cases ethical rules will prevent Roberts from answering and I'll try to indicate where he cannot (I disagree with Matthew Franck's statement on National Review's Bench Memos that there are no problems with any of the questions, that's ludicrous on its face), although no ethical rules require Schumer to portray Roberts' silence honestly. Schumer's questions are in regular type (with coloration), my responses/comments are in bold. This lot is primarily theoretical and not as specific nor policy-intensive as Schumer as Torquemada IV.
4. Under what circumstances is it appropriate for the Supreme Court to overturn a well-settled precedent, upon which Americans have come to rely?
When it's wrong (Plessy, Dred Scott, Kelo)
-- Does your answer depend at all on the length of time that the precedent has been on the books?
No. Wrong is wrong. At last check, Plessy was about 57 years old when it was flipped by Brown v. Board of Educ. of Topeka, Kan.
-- Does your answer depend at all on how widely criticized or accepted the precedent is?
Again no. Plessy was widely accepted. Texas v. Johnson was roundly criticized. The former is an abomination. The latter is a soaring affirmation of what the First Amendment is truly about.
-- What if you agree with the result but believe the legal reasoning was seriously flawed? Does that make a difference?
Modify the basis of the decision. It's not that hard.
-- Does it matter if the precedent was 5-4 in deciding whether to overturn it? Does it matter if was a unanimous decision?
Why should it? Wrong is wrong. Kelo would be a crap decision if it were 9-0. Indeed, Wisconsin v. Mitchell IS a crap decision and was 9-0. Similarly, Texas v. Johnson is dead-on correct, but was 5-4. Oh yeah, Plessy was 8-1 [Dred Scott v. Sandford was 6-3].
Specifically [uh-oh, here it comes -- TKM]:
-- Do you agree with the 1976 decision in which the Supreme Court held that Congress could not extend the Fair Labor Standards Act to state and city employees (National League of Cities v. Usery), or do you agree with the later 1985 decision, which held that Congress could (Garcia v. San Antonio Metropolitan Transit, overruling Nat'l League of Cities). Was the Court right to overturn its precedent nine years later? Why or why not?
I don't know enough about those cases to opine. I'll just stick with the wrong is wrong analysis. If a case comes to the Court in 2007 arguing against Kelo and the Court reverses the Kelo decision, that's a GOOD outcome.
-- Do you agree with the 1989 decision in which the Supreme Court held that it was constitutional to execute minors (Stanford v. Kentucky), or do you agree with the later 2005 decision, which held that it was unconstitutional (Roper v. Simmons). Was the Court right to overturn its precedent 16 years later? Why or why not?
Roberts will dodge this and he should because this may come up again. After all, the Supreme Court ruled the death penalty unconstitutional in the 1970s in a way that affected all death penalty statutes then on the books and effectively reinstated the constitutionality of the death penalty about 6-8 years later. The Monk's answer is simple: Roper is a jurisprudential abomination -- it effectively says that a murderer who kills at the age of 17 years, 364 days is functionally different from one who kills on his 18th birthday solely due to the age, without accounting for any facts and circumstances regarding the murderer and the murder. Plus, Roper relied on a false definition of "consensus" and a completely incorrect reading of international law.
-- Do you agree with the 1986 decision in which the Supreme Court held that states could criminalize private sex acts between consenting adults (Bowers v. Hardwick), or do you agree with the later 2003 decision, which held that the states could not (Lawrence v. Texas)? Was the Court right to overturn its precedent 17 years later? Why or why not?
Bowers is based on the states' police powers (although their use in that case is unwarranted: just because the state CAN legislate doesn't mean it should); Lawrence is a judicial fiasco. Justice Thomas' dissent is about as good as it gets in a short space.
5. Under what circumstances should the Supreme Court invalidate a law duly passed by the Congress?
When it's unconstitutional. Next question.
-- What amount of deference should the court give to Congressional action?
As much as it deserves, no more, no less. If the Congressional enactment violates Article I, Section 9 (powers denied to Congress), it gets no deference; ditto any enactment that violates the various Amendments or trods upon the powers of the Executive.
-- Should the Court err on the side of upholding a law?
Only if the law is within the Article I, Section 8 powers of Congress.
-- Do certain types of laws deserve greater deference than others? Regulatory laws? Criminal laws?
Article I, Section 8 laws get greater deference. Laws that infringe upon Article II powers should get no deference. Criminal laws directly relating to Article I, Section 8 powers should get deference but the Court has a duty to ensure that Congress has ensured that its enactment actually DOES directly relate to such powers.
Nonetheless, this is a REALLY general theoretical question that Roberts should dance around.
-- How closely tied must a law be to an enumerated right of Congress under Article I for it to be upheld?
Pretty dang close. Don't just make s--t up (see below).
This question is an attempt to get Roberts to pre-judge future cases
Let me ask you about a few cases in which the Supreme Court has struck down federal laws:
-- Do you agree with the Supreme Court's decision to strike down the Gun-Free School Zones Act at issue in United States v. Lopez (1995)? Why or why not?
Heck yeah, that law had nothing to do with interstate commerce. That was just a Congressional policy preference.
-- Do you agree with the Supreme Court's decision to strike down provisions of the Violence Against Women Act in United States v. Morrison (2000)? Why or why not?
Again, yes. Congress encroaching upon the states' police powers under false cover of the commerce clause. Not every crime needs to be a federal case.
Essentially, Schumer is looking to see if Roberts will uphold a far-reaching Congressional legislative agenda. The answer should be that if such agenda reaches too far, Congress needs a reminder of the Constitutional limitations under which it must operate.
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