Claremont McKenna Professor Ralph A. Rossum, my advisor, and professor of one of my favorite classes, has written an op-ed that has found a home at Investor's Business Daily. If you have an opportunity to take a class with him, do it. I cannot really do it justice and I don't disagree with a word of it, except Rossum's use of age and representation, which I'll get to in a minute.
As Niall Ferguson argues in a Hoover Institution speech he delivered on McCain, ageism, and how McCain can win due to median ages, you don't always want someone that's the same age as the median. The Supreme Court is supposed to be unrepresentative! Rossum may be trying to capture the point that the liberals often make that political institutions ought to be representative, but it doesn't really come across in the op-ed.
Still, it's a fantastic article. Here's to hoping Professor Rossum gets to write a bunch more!
Who Better To Reflect A Consensus: Elected Congress Or Divided Court?
By RALPH A. ROSSUM | Posted Tuesday, July 22, 2008 4:20 PM PT
The Supreme Court's controversial end-of-term decision in Kennedy v. Louisiana, in which five justices determined, based on their "own independent judgment," that a "national consensus" exists opposed to imposing the death penalty for the rape of a child, raises two critical questions.
First, who better can identify and express a contemporary national consensus: Five unelected justices or the 535 members of the U.S. Congress (whose 435 House members are elected every two years and 100 senators every six years)?
Before answering, consider that the five justices who joined the majority opinion have been ensconced in the Marble Palace for an average of 20 years each (they range from Stevens, 33 years, to Breyer, 14 years). Consider also that since they have an average age of 74, they are out of touch with how most Americans live. Stevens is 88, Ginsburg 75, Kennedy 72, Breyer 70, Souter 69.
Second, does a vote of 390-39 in the House on May 24, 2005, approving language in Public Law 109-163 authorizing military courts-martial to impose the death penalty for the rape of a child, and passage of the same language in the Senate by unanimous consent on Nov. 15, 2005, suggest the presence of a contemporary and overwhelming national "consensus"?
Judges For Life
If you answered the Congress and "yes," you should have a serious problem with the Supreme Court's decision in this case. It found Louisiana's law unconstitutional because it violated the Eighth Amendment's ban on "cruel and unusual punishments."
It originally was understood to ban only particularly heinous modes of punishment — flaying alive, breaking on the rack, drawing and quartering, etc. But, in 1958, the Warren Court redefined it to ban punishments contrary to "the evolving standards of decency that mark the progress of a maturing society."
How are those standards to be determined? The most obvious place for the court to turn is to a national consensus revealed by what Congress and the state legislatures had adopted as appropriate punishments. In Thompson v. Oklahoma (1988), it did just that, finding more state legislatures prohibited executing offenders younger than 16 than allowed it and therefore declaring a national consensus to exist opposed to executing anyone under that age.
In Roper v. Simmons (2005), the court took a different tack: Since a majority of death-penalty states allowed for the execution of 16- and 17-year-olds, Justice Kennedy could not argue that a national consensus opposed it; he therefore turned instead to "foreign sources" and invalidated the juvenile death penalty because inconsistent with international norms.
As Scalia's dissent trenchantly observed, Kennedy's selective invocation of foreign sources was not "reasoned decision-making" but "sophistry." If invocation of foreign sources was sufficient to ban the juvenile death penalty, it would also be sufficient to affirm greater restrictions on abortion — something Kennedy found anathema.
Roper was met with ridicule, so this time, Kennedy skipped references to state legislation and foreign sources and pronounced that the court, by its "own independent judgment," could identify a national consensus.
So why did the court simply ignore the Congress' expression of a contemporary national consensus? The simple answer: Kennedy was unaware of Congress' action. He hadn't done his homework!
When word of his hugely embarrassing oversight surfaced on a military law blog, the reaction of Jeffrey Fisher, the defendant's attorney, was to blame not the court but the Justice Department: "We figured if somebody in the government thought otherwise, we'd hear about it."
But herein lies the rub: When the court acts as a legislative body (as a prospective, societywide policymaker) and not as a traditional court of law (as a retrospective, specific grievance-resolver), it must do the same heavy lifting that legislators do.
It must conduct public hearings inviting all interested parties to testify and bring to its attention relevant facts needed to legislate well. It must replace its law clerks with legislative assistants and policy analysts. It must become a full-fledged legislative body employing all the resources and staff necessary to determine how best to deal with the policy issues it addresses.
But wait! We already have such a legislative body — the Congress. And if we don't like the answers it gives, we can vote the rascals out. Not so with life-tenured justices. Why does the court want to be the legislative branch, when the Constitution clearly assigns that duty to the Congress?
Sake Of The Nation
Why, indeed, given what the same Kennedy said in Boumediene v. Bush, the controversial end-of-term Guantanamo Bay case, concerning separation of powers and the importance of each branch performing its constitutionally authorized function. The answer is simple: judicial arrogance.
Old, out-of-touch, unelected justices believe they know better what is good for America than Congress and can therefore identify and impose a national consensus. And when the court does, it denies it's illegitimately usurping legislative power.
As Kennedy said in Planned Parenthood v. Casey, the court need not worry about legitimacy if it is acting selflessly: "The Court's concern with legitimacy is not for the sake of the court but for the sake of the nation to which it is responsible."
In the Louisiana case, the court legitimately usurped Congress' power because it was "for the sake of the nation." Kennedy sounds like your run-of-the-mill, bloviating politician. They always cloak self-interested motivations in high-minded justifications like "we need to do this for the children." Or in this case, the rapists of children.
Rossum is the Salvatori Professor of Political Philosophy and American Constitutionalism at Claremont McKenna College and the author of "Antonin Scalia's Jurisprudence: Text and Tradition" (University Press of Kansas, 2006).