Are the Supremes Trying to Show Contempt of Congress?


Or are they trying to conceal it? In the white hot excitement over last week's bench-clearing NARAL brawl, we forgot to note Sen. Arlen Specter's ("R"-PA) hurt-feelings letter to Judge John Roberts. Speaking on behalf of "irate" members of the world's greatest deliberative body and massage parlor, Specter condemns "the Court's denigrating and, really, disrespectful statements about Congress' competence. In U.S. v. Morrison, the court rejects Congressional findings because of 'our method of reasoning'." The Keystone State's senior senator, "who has labored through 25 years of intense legislative hearings and fact-finding plus prior public service and experience in the real world," continues:

(1) Is there any real justification for the Court's denigrating Congress' "method of reasoning" in our constitutional structure of separation of power where the elected Congress has the authority to decide public policy on issues such as gender-based violence effecting (sic) interstate commerce?"

(2) Is there any possible basis for the Court's characterization of "uniquely judicial competence" implicitly criticizing a lesser quality of Congressional competence?

(3) Do you agree with Justice Harlan's jurisprudence concerning legislation on the "rational basis" test as embraced by the dissent contrasted with the majority opinion?

(4) What is your thinking on the jurisprudence of U.S. v. Lopez and U.S. v. Morrison which overturned almost 60 years of Congress' power under the Commerce Clause?

Thanks to reader biologist for the heads up.

Specter's comments opened to mixed reviews. The Washington Post is characteristically sympathetic:

Some rulings have offered a healthy check on congressional power over the states. Others have been frankly inconsiderate of Congress's ability to make law in matters squarely within its competence….

The commerce power, the subject of Mr. Specter's missive, is the legal foundation for a huge swath of modern law. Civil rights, environmental and worker protections statutes all depend upon it…

Judge Roberts's opinion [in the Rancho Viejo "toad case"], which questions whether the commerce power is broad enough to permit the federal government to protect an endangered species within a single state, is a bit elliptical and underdeveloped…[but] raises the concern that he would take a view of federal power more constrained than is healthy in a country with a modern economy, a mobile population and environmental problems that know no state borders.

The Pittsburgh Tribune-Review, meanwhile, gives Specter an exorcism:

Specter's view of legislative supremacy is demonstrably absurd. As [Chief Justice John] Marshall said, such a view of the Constitution would result in "Giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure."

Marshall pressed the point still further, asking, "Could it be the intention of those who gave this power, to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?"

How pointless is Specter's fulminating? Possibly not as pointless as most of us would wish. His concern about the Rehnquist court's "judicial activism" is pretty much standard anti-federalist stuff; whichever way it goes down, this will mainly rehash fights we've seen in our own lifetime.

His comments against the respective competences of Congress and the Supreme Court—though keyed off a David Souter dissent—are considerably more revolutionary. Judicial review of new laws is not actually prescribed in the Constitution; it comes out of the Marbury v. Madison precedent, and in theory there's nothing to stop the court from reversing that precedent. That's certainly a long shot, but then we live in an era when the left and the right are equally exercised against "activist judges" who thwart the demonstrated will of the public, when federalists are widely considered out-of-control madcaps, and when the process of filling court seats is heavily biased toward approving pliable, career-driven hollow men. Specter's comments may appear to be laughable, but they're only fall-down funny if you take them seriously.

Full text [PDF] of Specter's letter here. Jacob Sullum reviews NARAL's anti-Roberts ad here. Nick Gillespie defends Roberts against charges that he's a card-carrying member of the Federalist Society here. The Senate gets seriously disrespected, as anti-slavery/anti-imperialist Senator Charles Sumner gets beaten with a cane (and tries to defend himself with a feather) here. Kudos to Specter for using the correct adjective "intense" rather than the popular but incorrect "intensive."

NEXT: The Kelo Kicker

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  1. *snort* An activist judge is someone who decides the opposite way you do. Sometimes it’s by striking down a law, sometimes by upholding it.

    It’s an insult with no meaning. It just means “He didn’t do it the way I wanted, WAAAAH”.

    If we wanted to have a decent discussion of the relative merits of the judiciary, it should start by banning that term and substituting a discussion over the Constitutional merits of whatever decision is the topic of the day — but if we did that, we’d sound like those damn activist judges ourselves, with our discourse and our arguments and our appeal to precedent and Constitution.

  2. Tim sez: “Judicial review of new laws is not actually prescribed in the Constitution”

    I’ve heard that before, but I’m not sure that it’s true. The relevent provision is Article III, Section 2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority …”

    Then, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

    I certainly think deciding whether a law is constitutional counts as “[a case] arising under this Constitution.” The only question is whether it would fall to the Supreme Court, and the answer is, not necessarily. It would go first to the lower federal courts, and it could be appealed to the Supremes. Which is exactly the way it works now.

    Ah, you might say. But what about “under such Regulations as the Congress shall make”? By my reading, that allows Congress to decide (except in cases of ambassadors and those involving a state) when the Supreme Court has original jurisdiction and when it has appelate jurisdiction. I suppose you could read it as giving Congress the power to take away the Supreme Court’s appelate jurisdiction on certain matters — such as questions of constitutionality — but think about what would happen then. The other federal courts could still declare laws unconstitutional, but their decisions couldn’t be appealed to the Supreme Court. And that doesn’t make any goddamn sense.

  3. >Kudos to Specter for using the correct adjective “intense” rather than the popular but incorrect “intensive.”

    Puzzling statement.. Why is ‘intense’ (which means somelike like ‘to a very high degree’ correct, but ‘intensive’, which is a different word, with a different meaning (essentially ‘detailed’ or ‘with considerable care’–as in ‘intensive care’ or ‘intensive cultivation’) incorrect?

    Intense hearings are different things from intensive hearings. Intense hearings might be short but would be characterized by raised voices, while intensive hearings would be long, and probably boring.

    Why do people feel the need to comment on the ‘correctness’ of others use of language? What is gained by playing ‘gotcha’ on the basis of the shibboleths invented in the eighteenth century by a few authors of English grammars.
    This is not to pounce on Tim, who is by no means the only one to do this–lots of well-meaning (usually conservative)writers do this, but perhaps it’s time to question the basis for the pouncing in the first place.

  4. Kudos to Specter for using the correct adjective “intense” rather than the popular but incorrect “intensive.”

    Yeah, but then he wrote of “gender-based violence effecting interstate commerce,” when it should really be “gender-based violence affecting interstate commerce.” Unless he means that domestic violence generates commerce, in which case I’ll take the Supreme’s method of reasoning any day.

  5. Kudos to Specter for using the correct adjective “intense” rather than the popular but incorrect “intensive.”

    But points taken away for “gender-based violence effecting interstate commerce.” Unless he actually means that gender-based violence in some sense causes interstate commerce. And in my book, using the wrong word in such a basic situation far outweighs using the right one in a pedantic situation.

  6. Well, nobody’s going to believe me, but I actually put in the intense/intensive thing because I’d been meaning to (sic) the effecting thing-so it would show that I’m always fair and balanced. But I forgot the sic. It’s siccening, really. It’s in there now, and I appreciate your bringing it to my attention.

  7. The way i read it, if Specter is going all the way back to Morrison and crying about how the court said mean things about Congress, I can only guess that Congress is kicking its Congress uber alles campaign into full high gear. Congress… victmized… by SCOTUS. Now I’ve heard everything.

    There are maybe 10 members of Congress who are worth the paper they wipe their asses with. The rest of ’em leave the courts to clean up their sickening mess. If they don’t like their idiocy being insulted by a body that is vastly more educated, more sober, and more committed to doing its job properly then they are, then they should remove their heads from their asses, stop sucking their campaign donors’ dicks all day, and start giving a shit about this country’s welfare. They’re lucky we put up with them at all, because quite frankly they’ve worn out their welcome and outlived their usefulness.

    Then there’s this nonsense from the Post:

    the opinion raises the concern that he would take a view of federal power more constrained than is healthy in a country with a modern economy, a mobile population and environmental problems that know no state borders

    Ugh. Their basic view is if Congress can’t sweep everything on earth under the Commerce rug, then our economy, environment and civil rights are doomed. Later the editorial suggests that those who would pare back the endless “Commerce” power of Congress are “radicals.”

    Radicals? For thinking that homegrown pot for medical use, that isn’t bought or sold, in a state whose voters agreed to legalize pot for medical use, is nonetheless subject to being outlawed by federal law — on the basis of the god-damn COMMERCE power?

  8. Since when is it wrong to show contempt for Congress?

  9. It’s siccening, really.

    Oof. Now that’s bad, Tim…

  10. Apologies in advance for the thread jack, but what’s with all the super long entries today?

  11. I’m still a bit rusty on my government checks and balances, but is there any Congressional override of SC decisions or is the SC the final say whether laws can be implemented or not?

    In theory, I believe congress should have the say in laws where an overwhelming majority agree because Congress representst a representative body, but the rational side of me says “I really don’t trust Congress not to destroy the constitution on a whim”

  12. mediageek-today is national “in depth literacy day”. Time to flex those reading muscles.

  13. LIT,

    The check is the constitutional amendment process. If they don’t like a law, they can just change the Constitution!

  14. Lost_In_Translation:

    To follow up on Randolph Carter’s post–

    I believe the 11th Amendment was just such an occurence.

  15. For the record, I got it, Tim. You think the legislative hearings were more “to a high degree” than “with considerable care.”

    Hat tip Geoff.

    hardy har har

  16. MJS, RC,

    Thanks. That brings it together for me, though I can’t believe I forgot constitutional amendments.

  17. Lost In Translation:

    Don’t feel bad about forgetting about amendments. It appears that all three branches have forgotten about them, too. How else to explain the current fetish of packing the courts with “your guys”, if not to avoid the heavy lifting involved with amending? Far better to get some pliant weasels on the court who will rule “your way”, rather than read the Constitution as actually written.

  18. I sincerely hope that Specter took the marbles out of his mouth when he spoke to Roberts. For the life of me, I can’t understand why he speaks in public with those things in there.

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