Tuesday, December 19, 2006

SCOTUS thoughts: An overreaction, in part

Mark Levin has two suggestions for reforming the Supreme Court: (1) term limit justices; (2) allow Congress to veto Court decisions. His article is part of a series in Human Events magazine in which former Reagan Administration officials discuss how they believe Reagan conservatism principles should be applied now and in the future.

The Monk does not have a problem with the first suggestion. A 14 to 18 year maximum term with potential re-appointment for another, shorter term is not unreasonable at all. In New York, the judges on the state's highest court (the New York Court of Appeals) serve for 14-year terms. That said, there should be some provision to ensure that no supermajority will ever be required for appointments.

Levin's second suggestion is somewhere between redundant and contrary to the Framers, depending upon the context. Here is his idea:

Giving Congress a veto over Supreme Court decisions would also help restore the balance between the court and the legislature. If it took a two-thirds majority vote in both houses to veto a decision, such vetoes would not happen often. But it does allow the people, through their elected branches, to have the last say.

Putting aside the fact that in most cases Levin's suggestion would require a Constitutional Amendment (see below), here's what is wrong with Levin's thought process:

First, for all Supreme Court decisions that interpret Federal laws but do NOT rule that the law is unconstitutional, Congress has the ability to overrule the Court by majority vote -- exactly as it did with the Military Commissions Act in the wake of Hamdan. This is also true for Supreme Court decisions relating to bankruptcy, patent, maritime and other subjects that are squarely within the ambit of Federal law. Why require a supermajority?

Second, for decisions that interpret the Constitution, there already IS a remedy for overturning the Supreme Court's ruling: amending the Constitution. The fact that this is rare shows how the Supreme Court acts as a rational check upon the potential of a runaway majority. The amendment process requires both Congressional approval and state approval, therefore it is actually MORE representative of the will of the people than the acts of Congress alone.

Third, there is no mention of decisions that are based on the Court's interpretation of state law -- such as R.A.V. v. St. Paul. Would Levin allow Congress to have a veto on Supreme Court decisions that interpret whether state law violates the Constitution? If so, the whole concept of dividing powers between the Federal government and the 50 states gets flushed away. Levin uses the egregious Kelo decision as an example of a case that should (and would) be reversed by the Congressional veto, but that was purely a local decision based on Connecticut law, interference by the Federal government in such local affairs is anathema to Reaganite small government conservatism.

Levin brings up some interesting points, but his Congressional veto solution to the problems inherent in the Supreme Court would have more negative effects than the current situation.

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