The Dude Abides (gonzaloguerrero) wrote in postqueer,
The Dude Abides

Not-So Supreme
The dumb new proposal to veto the Supreme Court.
By Dahlia Lithwick
Posted Wednesday, March 17, 2004, at 3:32 PM PT

This one may have escaped your notice: Last week, a Kentucky Republican introduced a new House bill, HR 3920, to allow Congress to override Supreme Court decisions. No, seriously. Ron Lewis' bill, cheerfully titled, "The Congressional Accountability for Judicial Activism Act of 2004," was introduced without much fanfare, perhaps because it's one of the dumbest ideas ever.

Lewis' bill proposes to let Congress, by a two-thirds vote of each house, override any Supreme Court decision that presumes to review the constitutionality of an act of Congress. In a recent press release, Lewis notes the shenanigans of "activist judges," such as those on Massachusetts' Supreme Court—who recently ruled that it's discriminatory to prohibit gay marriages—even though his proposed legislation does nothing to address state Supreme Court decisions. He even concedes that a "more comprehensive solution" would be necessary to address the gay marriage issue. But absent a more comprehensive solution, he's willing to waste everyone's time debating a useless one.

Lewis also cites to the 9th Circuit's decision in the Pledge of Allegiance case, as evidence of "judicial … overreaching," even though federal appellate court decisions are also not covered by his legislation.

So who is HR 3920 really going after? The nine justices on the Supreme Court, who "were not elected and are serving life terms" and who should not have the final word on what "the American people must do and not do." The bill serves as a warning that the court had better vote for majoritarian values or risk becoming irrelevant.

Professor Erwin Chemerinsky of University of Southern California Law School, in one of the only stories that's been written about the dumb bill, has opined correctly that when Robert Bork tried to terminate judicial review, he at least sought to do so by amending the Constitution. Lewis wants to pass an act of Congress that the Supreme Court would merely find unconstitutional. The best evidence that congressmen shouldn't get into the business of interpreting the Constitution? Ron Lewis pithily arguing that just because Marbury v. Madison is 200 years old and the cornerstone of modern judicial review power, it's not in the Constitution so it's not all that important.

So what? you're thinking. One more dumb bill introduced in Congress by someone more interested in getting his name in the papers than enacting real laws. It's just an unconstitutional bill that doesn't purport to redress the wrongs it decries. Why does it make me so cranky?

I've never been one to argue that demagogues on the right are any worse than demagogues on the left. But this practice of judiciary bashing is misguided. There is an important and real debate raging over whether the Constitution is a living document or a dead one. The question concerns whether courts should strictly construe the document (and essentially impose the framers' law), or construe it to reflect the evolving mores of a changing society. Legal scholars far smarter than Lewis and me devote lifetimes to thinking about this stuff. And reasonable minds can differ on the merits. Antonin Scalia recently expounded on the strict constructionist view. Stephen Breyer has argued for the living model. And there are democratic ways to make Lewis' point, especially if you are a congressman: If you don't like judges who aren't strict constructionists, work hard to keep them off the bench.

But Lewis wants to upend the whole bench instead. His plan represents a categorical refusal to be bound by the decisions of any judge holding a "living Constitution" view. It says, and increasingly pundits on the far right have argued, that anyone who interprets the Constitution using a theory that differs from one's own is simply not a judge, and that law as decided by such judges is simply not law. That goes beyond demagoguery to arrogance and lawlessness. Whatever I may think of Justice Scalia and strict constructionism, I would never suggest for a moment that his decisions do not bind me.

Congressman Lewis' bill shouldn't be made into more than it is: a silly little piece of shucking and jiving to polarize voters and get his name in print. I hereby kick myself for putting it in print. But this legislation represents the crossing over of a line—from contempt for any judge who doesn't see things Lewis' way—to contempt for the bench as a whole. And that shouldn't go unnoted.

Dahlia Lithwick is a Slate senior editor.

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