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Supreme Court, Supreme Issues

I have long been annoyed by how the US Supreme Court (SCOTUS) seemed to work, so I decided to look more into this by reading a short textbook on the topic. And yes this is one of those power corrupts, absolute supreme power corrupts absolutely. I read this book:

As usual, the book review will be long quotes and comments. This post is a bit polemical (but we will go back to nerdposting soon, don’t worry). Let’s go!

Chief Justice Rehnquist said it would be “remarkable indeed” if judges were not influenced by the broad currents of public opinion. “Judges, so long as they are relatively normal human beings, can no more escape being influenced by public opinion in the long run than can people working at other jobs,” he said in a lecture on “constitutional law and public opinion.” Further, he added, “if a judge on coming to the bench were to decide to seal himself off hermetically from all manifestations of public opinion, he would accomplish very little; he would not be influenced by current public opinion, but instead would be influenced by the state of public opinion at the time he came to the bench.”

In their somewhat different formulations, these judicial colleagues with distinct approaches to judging were in agreement that a judge’s awareness of public opinion is not only inevitable but desirable, even necessary. And these two justices put their observations into practice. Chief Justice Rehnquist was for years a vigorous critic of the Court’s decision in Miranda v. Arizona, the 1966 ruling that requires the police, before interrogating a suspect in custody, to deliver the now-familiar warnings about the right to remain silent and the right to counsel. But when the Supreme Court had the opportunity to overturn Miranda in 2000, the chief justice led the Court in the opposite direction. Instead of overturning Miranda, his majority opinion in Dickerson v. United States declared unconstitutional an effort by Congress to overturn the decision legislatively. “Miranda has become embedded in routine police practice to the point where the warning has become part of our national culture,” Rehnquist wrote.

Miranda rights/warning are those you see in American movies. “You Have the Right to Remain Silent”. Basically they didn’t exist until 1966 when SCOTUS (under chief Earl Warren) made them up in order to protect a career criminal, Ernesto Miranda. A jolly fellow:

Ernesto Arturo Miranda (March 9, 1941 – January 31, 1976) was an American laborer whose criminal conviction on kidnapping, rape, and armed robbery charges based on his confession under police interrogation was set aside in the landmark U.S. Supreme Court case Miranda v. Arizona, which ruled that criminal suspects must be informed of their right against self-incrimination and their right to consult with an attorney before being questioned by police. This warning is known as a Miranda warning.

On March 13, 1963,[1] Miranda’s truck was spotted and license plates recognized by the brother of an 18-year-old kidnapping and rape victim, Lois Ann Jameson (the victim had given the brother a description). With his description of the car and a partial license plate number, Phoenix Police Department officers Carroll Cooley and Wilfred Young confronted Miranda, who voluntarily accompanied them to the police station and participated in a police lineup. At the time, Miranda was a person of interest, but not formally in custody.

The Supreme Court invalidated Miranda’s conviction, which was tainted by the use of the confession that had been obtained through improper interrogation. The state of Arizona retried him. At the second trial, his confession was not introduced into evidence, but he was convicted again, on March 1, 1967, based on testimony given by his estranged common-law wife.[6] He was sentenced to 20 to 30 years in prison.[7]

Miranda was paroled in 1972.[7] After his release, he started selling autographed Miranda warning cards for $1.50.[8] Over the next few years, Miranda was arrested numerous times for minor driving offenses and eventually lost his license. He was arrested for the possession of a gun but the charges were dropped. However, because this violated his parole, he was sent back to Arizona State Prison for another year before being released.

On January 31, 1976, a fight erupted in a bar in downtown Phoenix in which Miranda was stabbed. He was pronounced dead on arrival at Banner Good Samaritan Medical Center. Several Miranda cards were found on his person. Miranda was buried in the City of Mesa Cemetery in Mesa, Arizona.[9] The person suspected of handing the knife to the man who murdered Miranda invoked his Miranda rights and refused to talk to police. He was released and was not charged in Miranda’s murder.[10] The man suspected of murdering Miranda, then-23-year-old Eseziquiel Moreno Perez, was formally charged with murder on February 4, 1976.[5] However, he has never been apprehended as he fled to Mexico following the murder and has never been found.[11]

So SCOTUS was able to momentarily save this guy, but he still got “20-30” years in the second trial, and somehow was released after 5 years (!!). After this he got killed in some bar battle. Curiously, when a SCOTUS judge who had long been critical of this made up law, was given the opportunity to reverse it he didn’t. And that isn’t a first time thing either:

Justice O’Connor had been a critic of affirmative action throughout more than twenty years on the Court when a case arrived challenging an effort by the University of Michigan Law School to increase the racial diversity of its student body by means of an admissions policy that took into account an applicant’s race. O’Connor voted to uphold the plan and wrote the Court’s majority opinion in the case, Grutter v. Bollinger (2003). She cited briefs filed on the law school’s behalf by educational leaders, corporate executives, and military officers. “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity,” is how O’Connor summarized the core of the argument for the law school’s position. She left little doubt that she had been persuaded not only by this argument but by the fact that it was put forward by those representing a broad segment of elite opinion.

It is not necessary to conclude that either of these justices experienced sudden epiphanies when confronted with cases that put their own frequently expressed principles to a concrete and highly visible test. The point is rather that each considered the case at hand not as an abstract legal proposition but as a dispute arising in a social and political as well as legal context. It is not necessary to agree with either outcome—indeed, Rehnquist dissented in the Michigan case and denounced the law school’s admission plan as “a naked effort to achieve racial balancing”—in order to appreciate that the majority in both saw itself as navigating on a sea of public opinion.

The judges appear to think that if some decision was wrongly decided (as in completely made up by a prior court), then if enough time passes or “public sentiment” is in favor of it, it can’t be reversed. Is this a court or what? Doesn’t sound like law to me. There are rules, and you decide cases based on them. If the rules are bad, then congress has to change them. In they are in the constitution, then you need a constitutional amendment, as has been done many times in history.

These comforting and long-held assessments may well be outdated, however, given the deeply unsettling effects of the Court’s decision to eliminate the constitutional right to abortion. A draft of the Court’s opinion in the Dobbs case was, shockingly, leaked by a person or persons unknown almost two months before the formal opinion was issued nearly unchanged. Opinion polling during that period indicated that the public opposed overturning Roe v. Wade by a margin of two to one. A Gallup poll on the eve of the decision showed plummeting confidence in the Court, down to 25 percent, a “historic low,” according to Gallup. In language suggesting that the majority was well aware of the divergence between its goal and the public will, Justice Alito wrote in the majority opinion that “even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”

This attitude was strikingly different from the one the Court expressed thirty years before, when on the eve of the 1992 presidential election it faced the question of whether to retain or eliminate the right to abortion. To the surprise of nearly everyone, a narrow 5-to-4 majority decided Planned Parenthood of Southeastern Pennsylvania v. Casey by reaffirming what it called the “essential holding” of Roe v. Wade. In an unusual joint opinion by Justices O’Connor, Kennedy, and David H. Souter—all post-1980 Republican appointees—the majority described the pressure on the Court and explained why “principles of institutional integrity” required that Roe v. Wade be reaffirmed. A “terrible price would be paid for overruling,” the three justices wrote, adding that such a step “would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.”

The joint opinion is so revealing of the Court’s view of its connection to the public that it is worth quoting at some length:

The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.

The opinion went on to say that “to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.” Then, it continued:

The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. …

A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.

But the court caused it own problems when it made up the abortion ruling to begin with. Mind you, I am in favor of legal abortions, but I think laws should be a matter of democracy to implement. If Texas doesn’t want it legal but New York does, then that’s their business in their own jurisdictions. People who don’t like the law where they live can move somewhere else (voting with their feet). Why does a court think it should be mandatory to be legal (or illegal) everywhere? It stinks. By the way, here is the original basis of that ruling:

In most countries there is not so much hubbub over the supreme court, and rarely do citizens even know anything about it. This is clearly different in the US. Why is this? I posit that it is because the US Supreme Court has taken on a role as effectual lawmakers. In other western countries their Supreme Courts mainly interpret the law, while in US the Supreme Court decides the law. This means that enormous power now resides with these nine non-democratically elected elders.

The easiest way to see this is by examining the Due Process Clause:

No person shall … be deprived of life, liberty, or property, without due process of law.

That is it, the Due Process clause as written in the US Constitution. A straightforward reading is that it’s about that people should not get arrested or have their property confiscated without a trial and a ruling; a sensible law that is vital in separating a constitutional republic from a banana republic. But somehow the Supreme Court has latched onto this clause and given it as reason for a large variety of rulings. For example, in Pierce v Society of Sisters they ruled that the clause means that children cannot be required to attend public school; and in Griswold v Connecticut, two of the justices argued that this clause means that the state is not allowed to legislate regarding the legality of contraceptives. The galaxy brain level of this take is quite incredible.

And SCOTUS made up similar things about death penalty too:

In Kennedy v. Louisiana, a case decided in 2008, the question was whether it was constitutional to impose the death penalty for the rape of a child if the crime did not also involve murder. Years earlier, shortly after restoring capital punishment, the Court had ruled in Coker v. Georgia (1977) that the death penalty was not constitutionally acceptable for the rape of an adult woman. Louisiana was one of a handful of states that sought to extend its death penalty, beyond murder, to child rape. Was such a penalty one of the “cruel and unusual punishments” that the Eighth Amendment prohibits?

As in other categorical challenges to the application of the death penalty, the Court surveyed the sentencing landscape. With only six states imposing capital punishment for the rape of a child, the majority concluded that there was a national consensus against this use of the death penalty. The vote to declare the Louisiana law unconstitutional was 5 to 4. Writing for the majority, Justice Kennedy noted that while Congress had expanded the federal death penalty during the 1990s, none of the new applications involved the rape of a child. The observation bolstered the majority’s conclusion.

But the observation was incorrect. Neither the parties, nor the solicitor general, nor any of the amici were aware that only two years earlier, Congress had made the rape of a child subject to the death penalty for members of the armed forces governed by the Uniform Code of Military Justice. This inconvenient fact came to light after the Court had delivered its decision and recessed for the summer. Both Louisiana and the solicitor general’s office filed briefs asking the justices to reconsider the case. Briefs flew back and forth for weeks. Eventually, the Court announced that it would stand by its decision.

How does the court somehow know what constitutes “cruel and unusual punishment”? Did they do a survey? Of course not, that would be too sensible. But there are some academics who did surveys on these exact cases:

Amusingly, what SCOTUS finds to be not allowed is in fact something the public is in favor of! And that wasn’t the first time either:

In addition to institutional embarrassment in many quarters, there was a particular irony to this failure of information. The Court’s Eighth Amendment jurisprudence depends to a considerable measure on the justices’ assessment of public opinion as reflected in statutes. A punishment that is demonstrably “unusual” is deemed constitutionally problematic. On this basis, the Court has invalidated the death penalty for mentally retarded defendants who commit murder (Atkins v. Virginia, 2002) as well as for youthful killers (Roper v. Simmons, 2005). But this type of analysis depends on accurate information. The Court may be interested in public opinion, but it can’t read minds. Like the rest of us, the justices only know what they learn on their own or what someone tells them.

But the public is in favor of such punishments:

Sometimes SCOTUS makes up some ruling based apparently on copying foreign laws and treaties that USA hasn’t ratified:

Comparisons that focus on structure are inherently incomplete, because both substantive law and the domestic political context in which it evolves obviously differ across borders. These variations, along with the fact that the jurisprudence of some foreign courts has moved in a more liberal direction even as U.S. courts have become more conservative, accounts for the recent controversy in the United States over the propriety of federal judges citing non-U.S. judicial rulings in their own opinions. Citing foreign law, both Justice Scalia and Chief Justice Roberts have complained, is like looking out over a crowd and picking out one’s friends—selecting those opinions most compatible with a desired result.

Critics have focused on three Supreme Court opinions decided between 2002 and 2005. All three moved the law in a progressive direction, with the majority opinions citing the views of foreign courts or lawmakers. These foreign sources were clearly not invoked as determinative of the meaning of the U.S. Constitution, nor could they have been. But mere mention of the foreign materials provoked anger by framing the question of how to interpret the Constitution in a global context of evolving views on human dignity. Two of the decisions concerned capital punishment. The Court held in Atkins v. Virginia, in 2002, that the Eighth Amendment’s prohibition of cruel and unusual punishment barred the execution of intellectually disabled offenders. The majority mentioned a brief on the defendant’s behalf by the European Union. Three years later, in Roper v. Simmons, the Court barred the execution of those convicted of having committed a capital crime before the age of eighteen. In this case, the majority cited European amicus briefs as well as the United Nations Convention on the Rights of the Child, a treaty that the United States has not ratified.

There are many more examples of bizarre made up rulings. The history of how the court got all this power is basically that they played their cards wisely over the years to slowly gain more political power:

This book is not intended primarily as a work of history. Its aim is to enable readers to understand how the Supreme Court of the United States operates today. But while detailed knowledge of the Court’s history is not required for that purpose, acquaintance with the Court’s origins helps appreciate the extent to which the Supreme Court that we know today has been the author of its own history. From the beginning, it has filled in the blanks of Article III by defining its own power. In the process, the Court has defied Alexander Hamilton’s prediction in Federalist No. 78 (one of the eighty-five essays in the Federalist Papers, written to rally public support for the Constitution’s ratification) that lacking “influence over either the sword or the purse,” and possessing “neither force nor will, but merely judgment,” the judiciary would prove to be the “least dangerous branch.” That process of self-definition continues today.

As a legal matter, then, the case seemed straightforward enough. But it was also highly political, and it placed the authority of the Supreme Court on the line. Madison was seen as likely to defy a direct order to give Marbury his commission. How could the Supreme Court uphold the rule of law without provoking a confrontation with the executive branch that could leave the Court permanently weakened?

Marshall’s solution was to assert the Court’s power without directly exercising it. His opinion for a unanimous Court—speaking in one voice in the new Marshall style, rather than through a series of separate concurring opinions as in the past—held that Marbury was due his commission but that the Court could not order it delivered. That was because the grant of “original” jurisdiction to the Supreme Court in Article III did not include writs of mandamus. Section 13 of the Judiciary Act, in which Congress gave the Court jurisdiction to decide original mandamus actions like Marbury’s, was therefore unconstitutional and no mandamus could be issued. The decision gave the Court a measure of insulation at a time of political turmoil; without an order, the Jefferson administration had nothing to complain about. The decision’s significance, of course, lay in the Court’s assertion of authority to review the constitutionality of acts of Congress. “It is emphatically the province and duty of the judicial department to say what the law is,” Marshall declared—a line that the Court has invoked throughout its history, down to the present. In the guise of modestly disclaiming authority to act, the Court had assumed for itself great power.

The full extent of that power was not immediately apparent. In fact, only six days later, with Chief Justice Marshall not participating, the Court avoided a possible constitutional confrontation. Voting 5–0 in Stuart v. Laird (1803), the justices upheld Congress’s repeal of the Judiciary Act of 1801, a move some historians see as reflecting the Court’s unwillingness to test the full dimensions of the power it had just claimed for itself. More than half a century would pass before the Supreme Court again declared an act of Congress unconstitutional. That was the Dred Scott decision of 1857 (Scott v. Sandford), invalidating the Missouri Compromise and holding that Congress lacked authority to abolish slavery in the territories. That notorious decision, a step on the road to the Civil War, was perhaps not the best advertisement for judicial review. But since then, the Court has lost its early reticence. It has declared acts of Congress unconstitutional nearly two hundred times.

How the modern Court exercises its great power—how cases reach the Court and how the justices proceed to select them and decide them—who the justices are and how they are chosen—are the subjects of the remainder of this book.

As SCOTUS is now, it’s a political game where lucky sitting presidents get to add their new judge to the team that can make up rules as they go. They are free to reverse prior judgements as they see fit.

For Americans, this may seem natural, but as I wrote in my recent post, it is not at all normal:

In Denmark, we too have a Supreme Court (Højesteret, the highest court). Denmark has had its modern constitution since 1849. How many laws has the Danish highest court annulled for violating the constitution? One. Uno. En. It is simply not activistic in the way the American one is.

I don’t think Denmark is unusual. Unfortunately, this kind of “judicial activism” is spreading. Mere on this in the prior post, of how this has spread to Europe.

Is there any way to fix this for America? I don’t know. Maybe they have to do another constitutional amendment that explicitly says the courts can’t just make stuff up. Then again, the courts might just disregard that too in the same way they disregard civil rights law. It seems paradoxical to ask for a legal solution to a renegade court who doesn’t follow laws.

I know people will be asking, so what is your opinion Emil? Well, I am no lawyer, but I did have some thoughts.

Courts should interpret existing laws as they are written and as intent was behind the law. Lawmakers can make mistakes. In Denmark, parliament (congress) made laws about carrying knives in public. It turned out that some normal people driving with knives in their cars get convicted for by this law, which was not the intent. Eventually, some of these cases reached the Danish highest court (Højesteret) and it decided that the law was the law, but punishing fishers and carpenters for having knives in their cars is silly, so it reduced the sentences to the minimum (small fines). Parliament eventually wised up and changed the law. Only a few innocent people had to pay the price before it got fixed. You can read about this on Danish Wikipedia. I think this was a reasonably tolerable outcome. Politicians should not make laws in response to single, but outrageous cases. These kinds of laws tend to be rushed through and often have counter-productive effects. There’s tons of such laws around the world.

I think the division of powers should be respected. As Jonatan Pallesen put it:

I am a big supporter of democracy and liberal values. And thus I think a superior system overall is where there is a sharp distinction between the judicial branch and the legislative branch, and where democratically elected people are the ones deciding the law. Things such as whether to ensure a right for same-sex marriage or abortion should be democratically decided, instead of by a council of nine elders. Then we would have a world where those rights do not come into jeopardy because an 87 year old lady died this year instead of the next.

It seems a miracle USA works so well considering the political system it has. It has both a dysfunctional first-past-the-post voting system (and the bizarre delegation system on top), and courts that make up rules as they go (with lifetime tenure too, other countries sensible limit the terms and have age limits). My interpretation is that this shows how little importance government has (most of the time!). Various countries have experienced political gridlocks where the country was without a sitting government for years, and yet the countries worked fine. For instance, Belgium broke its own record of 540+ days without a government recently. It has in fact been breaking its own record a number of times the last 20 years. I think this is a point in favor of libertarianism. Belgium, though dysfunctional due to immigration, can apparently work mostly fine without a government. Perhaps we should limit governments to being in existence every second year as a general principle. Governments can’t make more problems when they aren’t in power. Think about it:

  • Taxes can’t go up.
  • No new poorly though out laws to inconvenience citizens.
  • No new spending sprees when elections are coming up (buying voters).
  • No damaging COVID lockdowns, or ordering the killing of millions of mink.
  • [insert your favorite recent government fuck-ups]