Saturday, September 26, 2015

Judicial hegemony

I'll comment on this post:

Departmentalism is a pipe dream. It's not the way America actually works. In practice, in America, the Supreme Court has a final say. 

Several problems with a that objection:

i) As I already noted, TFan careens between opposing principles. His initial post appealed to the English common law tradition. He said the founding fathers accepted the principle that judicial precedent can have the force of law.

a) Now that appeal is problematic on its own grounds, for as I pointed out, having a written constitution represents a significant modification of the common law tradition. A written constitution restricts judicial discretion compared to common law jurisprudence.

b) But in addition, TFan's argument is an appeal to what he takes to be the original vision of the founding fathers. They (allegedly) intended judicial precedent to be the rule of law. 

But then he reverses himself by appealing to the modern status quo as determinative. All that matters is not what the founders intended, but how the current system works. If so, then he's withdrawn his initial argument, and replaced it with another argument that appeals to a principle diametrically opposed to the initial argument.

In other words, Whelan's position is a minority position that reflects the way he thinks the system should be not the way the system actually is.

i) Unfortunately for him, TFan's objection is self-refuting. TFan isn't simply describing the status quo. Rather, he's treating the status quo as normative. For instance, he says:

They are free to think the Court decided wrongly. However, even if they disagree with the ruling, they have to obey the ruling until it is overturned. 
One doesn't have to agree with the Court, but one does have to obey the Court.

Notice the implication: we are supposed to comply with the status quo–because it's the status quo. He's not merely describing how things are, but saying we (whether private citizens, or the president, or Congress) ought to defer to the status quo. He confers normative force to the status quo. After all, if he doesn't think that's the case, then why not challenge the status quo?

ii) In addition, TFan's attempted critique of Whelan is vitiated by equivocation. Whelan is exegeting Marbury v. Madison. Whelan is discussing the original scope of that ruling. What did Marshall mean? 

By contrast, TFan appeals to how the Supreme Court has been behaving at later stages of American history. But that changes the subject from what Whelan is talking about. 

As I read it, Marbury isn't asserting that the judiciary has the authority to dictate to Congress or the Executive; rather, it's claiming that Congress and the Executive lacks the authority to dictate to the judiciary. It's an argument for judicial independence. But that doesn't entail that the other two branches of gov't are subordinate to the judiciary. Rather, we have three independent power centers. Each one is authoritative within its proper sphere of governance.

Of course, they are meant to work together. The system falls apart if they fail to cooperate. But that doesn't mean one branch has the right to impose itself on the other two branches by threatening to go on strike unless it always gets its way. 

iii) Furthermore, even if Marbury taught judicial supremacy, why should anyone take that claim seriously? When the Supreme Court makes a self-serving claim, that hardly makes the claim true. The appeal is viciously circular. The Supreme Court must have the authority it claims for its claim to be authoritative. Unless it had that authority in the first place, its claim to authority...lacks authority. 

It's like Catholic apologists who quote early bishops of Rome on Roman primacy. Well, we'd expect bishops of Rome to magnify their authority. 

The fact that the Supreme Court makes self-aggrandizing statements hardly proves it to be what it claims to be. The authority of the judiciary is something to be determined by the Constitution, founding fathers, and ratification debates. 

iv) Then there's TFan's persistent failure to distinguish between judicial review and judicial supremacy. The question at issue is not whether the judiciary has the authority to disregard laws it considers unconstitutional, but whether the other two branches of gov't are subordinate to judicial rulings. 

What would be the point of having a judiciary that no one had to obey? The idea that the Supreme Court's decisions on constitutional matters are just advisory is just nuts.

i) What's funny about this objection is TFan's blindspot to the obvious counterexample:

What's the point of having elective branches of gov't if no judge has to disobey them? The idea that the executive and legislative interpretations of the Constitution are just advisory is just nuts. 

Why is TFan unable to see the nuttiness of his alternative? If it all comes down to to judicial hegemony, then the people's elected representatives are merely figureheads. 

ii) In addition, the way he frames the argument is very slack:

Who said "no one" has to obey the judiciary? Private citizens are in a different position than, say, governors. Keep in mind that even at the state level, there is such a thing as states rights (9th-10th amendments). 

In addition, both private citizens and state officials are in a different position than the US president or members of Congress.  

Why is it "nutty" to say the judiciary lacks the authority to command the people's elected representatives? 

vi) Finally, there's TFan's circular appeal to the status quo. But that's just a tautology. How does the status quo obligate anyone to maintain the status quo?  The status quo is simply how things currently operate. But that's no reason to think the status quo cannot or should not change. The way things are as of now is descriptive, not prescriptive. 


  1. Steve: //The question at issue is not whether the judiciary has the authority to disregard laws it considers unconstitutional, but whether the other two branches of gov't are subordinate to judicial rulings.//

    It is implied in the Constitution that the Judiciary has authority to disregard laws it considers unconstitutional.

    It is equally implied there that the Executive and Legislative branches do too.

    Judicial review vs. Judicial supremacy. There certainly were divergent status quos in the South concurrent with the rest of the nation that led up to the Court's ruling in Brown v. Board. There seems to be strong consternation about current Executive orders which from the office of the Presidency seem to be the prevalent status quo. Each new President seems to be doing more of them as time flows by. It would be remarkable to see how the next President excises the ones he deems invalid come January 20, 2017 if a Republican ascends?

    And now with the Republican majorities in a quandary what's next for a House divided come November, 2015 and a Senate with that Body's arcane rules that work?

  2. Sounds about like a Romanist e-apologist on a rant about the authority of "tradition" and the indispensability of the Magisterium to me. He should know better.