In previous posts in this series, I've described some rather devious methods by which politicians have gotten around Supreme Court decisions. There's a more direct way to do that, but it is often difficult to accomplish. Those difficulties are what drive politicians toward the devious routes.
The direct method to which I refer is for Congress to amend the law on which the offending Court decision is based.
When a Supreme Court decision is based on its interpretation of a congressional statute, Congress's remedy is to amend the statute. One such example is the Lilly Ledbetter Fair Pay Act of 2009. It was designed to overturn the Supreme Court's interpretation of the Civil Rights Act of 1964, in the 2007 case of Ledbetter v. Goodyear Tire & Rubber Co.
Lilly Ledbetter sued her employer, Goodyear, because male coworkers were more highly paid than she was. Goodyear successfully defeated her claim, on a procedural point. The Supreme Court found that the statute of limitations (a limitation on the period of time following an occurrence, during which a plaintiff can bring a lawsuit arising out of that occurrence) had expired. A minority of justices were of the opinion that the time limit cannot run out, as long as the disparate compensation is still being paid out.
Most Republicans supported the point of view that it would put an undue burden on employers to force them to defend themselves against claims brought long after the initial compensation decisions were made. But, with Republican power in Washington vastly reduced by the 2008 election, congressional Democrats passed the Ledbetter Act in January of this year, and President Obama signed it, nine days after his inauguration.
The 2009 legislation wrote into law the rule that Associate Justice Ruth Bader Ginsburg advocated in her minority opinion in the Ledbetter case, i.e., that the statute of limitations in such cases resets with each pay period. In a not-very-subtle conclusion to that opinion, Ginsburg noted that, "once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII." Congress followed her suggestion.
Reversing a statutory interpretation is relatively simple. But what about constitutional cases? Stay tuned.
Monday, May 25, 2009
Supreme Court 10: Let Him Enforce It
Chief Justice John Marshall, in his opinion in the 1803 case of Marbury v. Madison, wrote that "it is emphatically the province and duty of the judicial department to say what the law is."
But Article II, Section 3 of the Constitution provides in part that the president and, by extension, the Executive Branch, "shall take Care that the Laws be faithfully executed".
The Supreme Court has no resources with which to enforce its decisions. Therefore, another way of reversing Supreme Court decisions is for the Executive Branch to refuse to enforce them.
Conventional wisdom has it that that happened in response to the Court's decision in the 1832 case of Worcester v. Georgia. But, in the opinion of many observers, that point of view oversimplifies the story.
The case is often described along these lines: The Supreme Court, still led by Marshall, prohibited President Andrew Jackson from forcibly moving Indians from southeastern states to the western territories. Jackson refused to obey, saying "John Marshall has made his decision; now let him enforce it!" That's an inaccurate description, but it's not 180 degrees opposite to the truth.
Samuel Worcester was a white missionary working among the Cherokee tribe in Georgia. In violation of state law, Worcester had not secured Georgia's permission to live among the Cherokees. He was convicted in state court, and appealed that decision to the federal courts on the basis that a treaty between the U.S. and the Cherokee tribe has the same status in federal law as a treaty with, say, Britain or France.
The Supreme Court sided with Worcester. Marshall's opinion read in part:
In a narrow sense, the Court's decision was obeyed. Georgia released Worcester from prison.
But the Cherokee people were eventually forcibly removed from Georgia under the Jackson Administration's policy of "Indian Removal". That seems to run counter to the Supreme Court's interpretation of the Cherokee treaties. But the removal was supported by new treaties, albeit of questionable validity, so that apparently was the legal basis that was not effectively challenged in the courts.
So, did Georgia and the federal Executive Branch defy the Court? Sort of.
What was Jackson's actual reaction to the Worcester decision?:
It lacks the drama of "let him enforce it!", so it's understandable that that apparently apocryphal version is still widely quoted.
But Article II, Section 3 of the Constitution provides in part that the president and, by extension, the Executive Branch, "shall take Care that the Laws be faithfully executed".
The Supreme Court has no resources with which to enforce its decisions. Therefore, another way of reversing Supreme Court decisions is for the Executive Branch to refuse to enforce them.
Conventional wisdom has it that that happened in response to the Court's decision in the 1832 case of Worcester v. Georgia. But, in the opinion of many observers, that point of view oversimplifies the story.
The case is often described along these lines: The Supreme Court, still led by Marshall, prohibited President Andrew Jackson from forcibly moving Indians from southeastern states to the western territories. Jackson refused to obey, saying "John Marshall has made his decision; now let him enforce it!" That's an inaccurate description, but it's not 180 degrees opposite to the truth.
Samuel Worcester was a white missionary working among the Cherokee tribe in Georgia. In violation of state law, Worcester had not secured Georgia's permission to live among the Cherokees. He was convicted in state court, and appealed that decision to the federal courts on the basis that a treaty between the U.S. and the Cherokee tribe has the same status in federal law as a treaty with, say, Britain or France.
The Supreme Court sided with Worcester. Marshall's opinion read in part:
The Cherokee Nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress. The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the government of the United States.
In a narrow sense, the Court's decision was obeyed. Georgia released Worcester from prison.
But the Cherokee people were eventually forcibly removed from Georgia under the Jackson Administration's policy of "Indian Removal". That seems to run counter to the Supreme Court's interpretation of the Cherokee treaties. But the removal was supported by new treaties, albeit of questionable validity, so that apparently was the legal basis that was not effectively challenged in the courts.
So, did Georgia and the federal Executive Branch defy the Court? Sort of.
What was Jackson's actual reaction to the Worcester decision?:
The decision of the Supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.
It lacks the drama of "let him enforce it!", so it's understandable that that apparently apocryphal version is still widely quoted.
Sunday, May 24, 2009
Supreme Court 9: Final?
Associate Justice Robert Jackson once said of the U.S. Supreme Court:
In one sense, that's true. There is no court to which Supreme Court decisions can be appealed.
But, in another sense, they're not necessarily final. There are ways of reversing Supreme Court decisions. In the next few posts in this series, I will discuss some of those methods. The first of those is "court packing".
As I noted here, the Constitution did not establish the size of the Supreme Court. By act of Congress, it has been established that there are nine justices on the Court. That number was smaller in the early history of the Court.
When Democrat Franklin Roosevelt became president in 1933, the Republican Party had held that office for 12 consecutive years, and for 28 of the previous 36 years. Seven of the nine Supreme Court justices had been appointed by Republican presidents, one by Taft, two by Harding, one by Coolidge, and three by Hoover. That lineup remained unchanged through Roosevelt's first term.
During that first term, the Supreme Court found parts of the Roosevelt's "New Deal" program to be unconstitutional. The main issue was whether to read Article I, Section 8, clause 3 of the Constitution narrowly or expansively. That so-called "Commerce Clause" reads as follows:
Roosevelt was miffed that the Court declined to interpret that clause liberally enough to allow the expansion of federal power that the president and the Democrat-dominated Congress had enacted in response to the Great Depression.
At the beginning of Roosevelt's second term, he proposed the creation of new associate justice positions on the Court. That "court packing" plan was disguised as an effort to aid older justices in keeping up with their workload. There would be one additional justice for every incumbent justice over the age of 70 who declined to retire, subject to a maximum of six additional justices.
But the real impact was obvious. It would have allowed Roosevelt to immediately appoint six additional justices, thereby reducing the seven Republican appointees to a minority on a 15-member Court. With 76 Democrats in the Senate, FDR's nominees would probably easily have been confirmed.
The Senate rejected the court-packing plan, but Roosevelt is generally seen as having lost the battle, but won the war. The justices seem to have taken the hint. They began allowing greater government regulation of the economy. And the older justices began to retire.
By the end of Roosevelt's record tenure as president, in 1945, he had appointed seven of the justices, and had promoted one of the others to chief justice.
We are not final because we are infallible, but we are infallible only because we are final.
In one sense, that's true. There is no court to which Supreme Court decisions can be appealed.
But, in another sense, they're not necessarily final. There are ways of reversing Supreme Court decisions. In the next few posts in this series, I will discuss some of those methods. The first of those is "court packing".
As I noted here, the Constitution did not establish the size of the Supreme Court. By act of Congress, it has been established that there are nine justices on the Court. That number was smaller in the early history of the Court.
When Democrat Franklin Roosevelt became president in 1933, the Republican Party had held that office for 12 consecutive years, and for 28 of the previous 36 years. Seven of the nine Supreme Court justices had been appointed by Republican presidents, one by Taft, two by Harding, one by Coolidge, and three by Hoover. That lineup remained unchanged through Roosevelt's first term.
During that first term, the Supreme Court found parts of the Roosevelt's "New Deal" program to be unconstitutional. The main issue was whether to read Article I, Section 8, clause 3 of the Constitution narrowly or expansively. That so-called "Commerce Clause" reads as follows:
The Congress shall have Power ... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
Roosevelt was miffed that the Court declined to interpret that clause liberally enough to allow the expansion of federal power that the president and the Democrat-dominated Congress had enacted in response to the Great Depression.
At the beginning of Roosevelt's second term, he proposed the creation of new associate justice positions on the Court. That "court packing" plan was disguised as an effort to aid older justices in keeping up with their workload. There would be one additional justice for every incumbent justice over the age of 70 who declined to retire, subject to a maximum of six additional justices.
But the real impact was obvious. It would have allowed Roosevelt to immediately appoint six additional justices, thereby reducing the seven Republican appointees to a minority on a 15-member Court. With 76 Democrats in the Senate, FDR's nominees would probably easily have been confirmed.
The Senate rejected the court-packing plan, but Roosevelt is generally seen as having lost the battle, but won the war. The justices seem to have taken the hint. They began allowing greater government regulation of the economy. And the older justices began to retire.
By the end of Roosevelt's record tenure as president, in 1945, he had appointed seven of the justices, and had promoted one of the others to chief justice.
Saturday, May 23, 2009
Supreme Court 8: Developments
As I wrote here, one of the issues for the U.S. Supreme Court, early in its existence, was not having enough work to do. In a small country, with a decentralized political structure, the caseload was minimal.
By the latter part of the 19th century, the country had grown, and the scope of federal law had grown. A series of actions were taken to help the Supreme Court deal with its increased caseload.
In 1891, Congress established the federal Courts of Appeals, organized into nine "circuits". Today, there are 13 judicial circuits.
The circuit courts hear appeals from lower courts. Consequently, the Supreme Court's role has largely been reduced to considering issues on which different circuits have issued contradictory opinions.
I addressed two changes in the first half of the 20th century, in this post. During William Howard Taft's tenure as chief justice, he advocated two changes to which Congress agreed. One was to allow the Supreme Court to decide which appeals it would consider, and which it wouldn't. Another was to build a separate building in Washington for the Supreme Court; before the completion of that building in 1935, the Court met in the Capitol.
The Supreme Court building is designed in such a classical style, it's easy to believe that it goes back to the original plan for Washington, DC, along with the headquarters of the other branches, i.e., the Capitol and the White House. But it was built more than a century after those buildings.
By the latter part of the 19th century, the country had grown, and the scope of federal law had grown. A series of actions were taken to help the Supreme Court deal with its increased caseload.
In 1891, Congress established the federal Courts of Appeals, organized into nine "circuits". Today, there are 13 judicial circuits.
The circuit courts hear appeals from lower courts. Consequently, the Supreme Court's role has largely been reduced to considering issues on which different circuits have issued contradictory opinions.
I addressed two changes in the first half of the 20th century, in this post. During William Howard Taft's tenure as chief justice, he advocated two changes to which Congress agreed. One was to allow the Supreme Court to decide which appeals it would consider, and which it wouldn't. Another was to build a separate building in Washington for the Supreme Court; before the completion of that building in 1935, the Court met in the Capitol.
The Supreme Court building is designed in such a classical style, it's easy to believe that it goes back to the original plan for Washington, DC, along with the headquarters of the other branches, i.e., the Capitol and the White House. But it was built more than a century after those buildings.
Thursday, May 21, 2009
Expense Accounts
With at most a year to go until the next British general election, that country's political debate is dominated by a scandal involving the expenses that have been submitted for reimbursement by members of Parliament (MPs). MPs representing constituencies outside of London are eligible to submit certain expenses that arise from their need to maintain two homes, one in London and one in the constituency. Widespread abuses have been reported.
Even though MPs of all of the major parties have been implicated, most of the political damage seems to be accruing to Prime Minister Gordon Brown, the leader of the Labor Party.
This is, of course, the type of story about which politicians want a minimum of publicity. But they lost all hope of that, when it was disclosed that a leading member of Brown's Cabinet had submitted the expense of an online pornography service to which her husband subscribed.
Brown's standing in the opinion polls, and that of his party, have been on a roller-coaster ride, since he replaced Tony Blair in the top job, in 2007. The latest polls show a large lead for the Conservative Party, which is led by David Cameron.
The Speaker of the House of Commons, Michael Martin, has resigned, on account of the scandal. I can understand placing responsibility for the scandal on the person responsible for administering the House. But it seems a bit hypocritical for MPs, among whom are those who sought the improper expense reimbursements, to place the blame on Martin.
Some say that Martin has been made a scapegoat. There seems to be some truth to that. And in thinking about the origin of that word, it strikes me how close this example comes to the original meaning.
Hebrew scripture (Leviticus 16:20-22) describes a procedure whereby a priest places all of the sins of the community onto a goat, and then sends the goat out into the desert, thereby purifying the community.
Martin is being cast out into the political desert. British politicians will find out in due course how effective their ritual of purification has been.
Even though MPs of all of the major parties have been implicated, most of the political damage seems to be accruing to Prime Minister Gordon Brown, the leader of the Labor Party.
This is, of course, the type of story about which politicians want a minimum of publicity. But they lost all hope of that, when it was disclosed that a leading member of Brown's Cabinet had submitted the expense of an online pornography service to which her husband subscribed.
Brown's standing in the opinion polls, and that of his party, have been on a roller-coaster ride, since he replaced Tony Blair in the top job, in 2007. The latest polls show a large lead for the Conservative Party, which is led by David Cameron.
The Speaker of the House of Commons, Michael Martin, has resigned, on account of the scandal. I can understand placing responsibility for the scandal on the person responsible for administering the House. But it seems a bit hypocritical for MPs, among whom are those who sought the improper expense reimbursements, to place the blame on Martin.
Some say that Martin has been made a scapegoat. There seems to be some truth to that. And in thinking about the origin of that word, it strikes me how close this example comes to the original meaning.
Hebrew scripture (Leviticus 16:20-22) describes a procedure whereby a priest places all of the sins of the community onto a goat, and then sends the goat out into the desert, thereby purifying the community.
Martin is being cast out into the political desert. British politicians will find out in due course how effective their ritual of purification has been.
Monday, May 18, 2009
Supreme Court 7: Civil War (cont'd)
Around the time of the Civil War, the Supreme Court considered the issue of civil liberties in wartime. As they (whoever they are) say, the more things change the more they stay the same.
In the case of Ex Parte Milligan, in 1866 the Supreme Court overturned the conviction by a military court of Lambdin Milligan. Milligan, an Indiana resident, was opposed to the U.S. going to war against the Confederacy.
The late Chief Justice William Rehnquist wrote about Milligan's case in his 1998 book All the Laws But One: Civil Liberties in Wartime. Rehnquist notes that civil courts were available, but the decision to instead go to a military court was seen as "the more expeditious mode". That procedural decision was pivotal in the Supreme Court case.
Rehnquist describes the relative lack of defendants' rights in military trials. For example, the charges against them were stated in more general terms than would be allowed in the civil courts. The defendants were not notified of the specific acts they were alleged to have committed.
Milligan was found guilty of treason in 1864, and was sentenced to be hanged.
The Supreme Court, in considering Milligan's appeal in 1866, the year after the Civil War ended, noted the different climate in which they were operating:
The Court was thereby acknowledging that it doesn't operate in a vacuum. It takes notice of events such as wars, and the ending of wars, when considering cases.
The Court decided that the military court had no jurisdiction to try Milligan because he was a civilian, and the state (Indiana) in which he was tried was one in which the regular federal courts were operational, and was not in rebellion.
The Supreme Court has repeatedly acknowledged the need to suppress certain civil liberties in wartime, but has never given the Executive Branch a blank check in that regard. Litigation arising from the current undeclared war on Al Qaeda fits in with that tradition.
The title of Rehnquist's book comes from a statement to Congress by Abraham Lincoln, early in the Civil War. Justifying the suspension of the writ of habeas corpus (the type of legal action by which a prisoner can seek to be freed if unlawfully detained) Lincoln said he would not allow "all the laws, but one, to go unexecuted, and the government itself go to pieces, lest than one be violated."
In the case of Ex Parte Milligan, in 1866 the Supreme Court overturned the conviction by a military court of Lambdin Milligan. Milligan, an Indiana resident, was opposed to the U.S. going to war against the Confederacy.
The late Chief Justice William Rehnquist wrote about Milligan's case in his 1998 book All the Laws But One: Civil Liberties in Wartime. Rehnquist notes that civil courts were available, but the decision to instead go to a military court was seen as "the more expeditious mode". That procedural decision was pivotal in the Supreme Court case.
Rehnquist describes the relative lack of defendants' rights in military trials. For example, the charges against them were stated in more general terms than would be allowed in the civil courts. The defendants were not notified of the specific acts they were alleged to have committed.
Milligan was found guilty of treason in 1864, and was sentenced to be hanged.
The Supreme Court, in considering Milligan's appeal in 1866, the year after the Civil War ended, noted the different climate in which they were operating:
During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power, and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case fully sensible of the magnitude of the inquiry and the necessity of full and cautious deliberation.
The Court was thereby acknowledging that it doesn't operate in a vacuum. It takes notice of events such as wars, and the ending of wars, when considering cases.
The Court decided that the military court had no jurisdiction to try Milligan because he was a civilian, and the state (Indiana) in which he was tried was one in which the regular federal courts were operational, and was not in rebellion.
The Supreme Court has repeatedly acknowledged the need to suppress certain civil liberties in wartime, but has never given the Executive Branch a blank check in that regard. Litigation arising from the current undeclared war on Al Qaeda fits in with that tradition.
The title of Rehnquist's book comes from a statement to Congress by Abraham Lincoln, early in the Civil War. Justifying the suspension of the writ of habeas corpus (the type of legal action by which a prisoner can seek to be freed if unlawfully detained) Lincoln said he would not allow "all the laws, but one, to go unexecuted, and the government itself go to pieces, lest than one be violated."
Sunday, May 17, 2009
India 13: Result
The Congress Party will lead the next coalition government in India.
As I described here, in the first few elections after India's independence in 1947, Congress routinely won a large overall majority in the Lok Sabha, the lower house of parliament. By contrast, the almost-completed vote count for this year's election shows Congress winning only 206 of the 543 seats. However, with the increasing scattering of votes among small parties, that gives them a significant lead over their rivals.
The United Progressive Alliance, a coalition of parties led by Congress, has won a total of 260 seats. Observers expect Congress to easily be able to find enough coalition partners to constitute a majority. India's political system resembles that of its former colonial ruler, Britain, in that the leader (or the leader's designee) of either the majority party, or the leading party in a majority coalition, becomes prime minister.
That means that Manmohan Singh will continue in that job. The Congress Party's leader, Sonia Gandhi, has preferred Singh as prime minister, since the party returned to power in 2004. Sonia Gandhi's son, Rahul Gandhi, 38, is expected to take over at some point, from the 76-year-old Singh. Rahul Gandhi's great-grandfather, Jawaharlal Nehru, was India's first prime minister.
The Bharatiya Janata Party (BJP), which led India's coalition government from 1998 to 2004, won 116 seats. With other parties in its National Democratic Alliance, it will have at least 159 seats. The BJP has, to some extent, succeeded in establishing a two-party system in India, which was lacking during the country's first half-century. But it continues to find it difficult to break Indians of their habit of returning Congress to power.
A coalition of smaller parties, called the Third Front, proved themselves not ready for prime time, with only 78 seats.
The result could mean that economic reforms, which were begun by a Congress-led government almost two decades ago, will be continued, and perhaps strengthened. After previous elections, the party needed to reach far to the left, including to communists, to build a coalition. That limited its ability to extend free-market policies. With its relatively strong result this time, Congress can bypass the communists, and construct a more centrist coalition.
As I described here, in the first few elections after India's independence in 1947, Congress routinely won a large overall majority in the Lok Sabha, the lower house of parliament. By contrast, the almost-completed vote count for this year's election shows Congress winning only 206 of the 543 seats. However, with the increasing scattering of votes among small parties, that gives them a significant lead over their rivals.
The United Progressive Alliance, a coalition of parties led by Congress, has won a total of 260 seats. Observers expect Congress to easily be able to find enough coalition partners to constitute a majority. India's political system resembles that of its former colonial ruler, Britain, in that the leader (or the leader's designee) of either the majority party, or the leading party in a majority coalition, becomes prime minister.
That means that Manmohan Singh will continue in that job. The Congress Party's leader, Sonia Gandhi, has preferred Singh as prime minister, since the party returned to power in 2004. Sonia Gandhi's son, Rahul Gandhi, 38, is expected to take over at some point, from the 76-year-old Singh. Rahul Gandhi's great-grandfather, Jawaharlal Nehru, was India's first prime minister.
The Bharatiya Janata Party (BJP), which led India's coalition government from 1998 to 2004, won 116 seats. With other parties in its National Democratic Alliance, it will have at least 159 seats. The BJP has, to some extent, succeeded in establishing a two-party system in India, which was lacking during the country's first half-century. But it continues to find it difficult to break Indians of their habit of returning Congress to power.
A coalition of smaller parties, called the Third Front, proved themselves not ready for prime time, with only 78 seats.
The result could mean that economic reforms, which were begun by a Congress-led government almost two decades ago, will be continued, and perhaps strengthened. After previous elections, the party needed to reach far to the left, including to communists, to build a coalition. That limited its ability to extend free-market policies. With its relatively strong result this time, Congress can bypass the communists, and construct a more centrist coalition.
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