Wednesday, March 19, 2008

The Rule of Law

Supreme Court Strikes Down Challenge to Washington State Elections

Good for the Supreme Court.

Some of my liberal colleagues are up in arms about yesterday's Supreme Court ruling (7-2) in Washington State Grange v. Washington State Republican Party, which said that, at least for now, the top two vote-getters in Washington State's primary election, regardless of political party, will advance to the general election.

My liberal colleagues are upset because they see this as the Court giving the finger to a political party's ability to control who its members are.

That is not what has happened.

The Supreme Court is acting precisely how we as progressives, committed to restoring the RULE OF LAW in the United States, should want them to act.

The Justices -- with all four of the "liberal" Justices in the majority -- did precisely what high school civics classes, back when we had high school civics classes, told their students is the role of the Judicial branch: ruled narrowly, only on the issue in front of them, and avoided making sweeping constitutional pronouncements when there was a way to avoid doing so (and there was.)

The job of the Judicial branch is to let the Legislative and Executive branches do their job, and to step in only when the law needs interpreting, to rule as narrowly as possible, and then to get back out of the way.

This is precisely what The Supreme Court did yesterday. Under Chief Justice Roberts we should expect to see this more often.


The key distinction in Washington State Grange v. Washington State Republican Party is FACIALLY v. AS-APPLIED.

The Justices are saying they are unwilling to consider if the law is unconstitutional on its face (as written), because it has never been implemented. The Supreme Court says it is not the place of the Judicial branch:
  • to decide if the Legislative branch has made a mistake,
  • absent the Executive branch implementing the law in a way in which real people are harmed,
  • unless the law clearly violates the written Constitution/Amendments or a previous (Constitutional) ruling of the Court, e.g.: imposes prior restraint on free speech, or imposes restrictions on abortion in the first trimester.
Otherwise, the Court is unwilling to rule against a law simply since someone says someday, somehow, the law might violate the Constitution if implemented poorly.

As this law has not yet been implemented, the Court says, we know our Constitutional role and refuse to over-reach. If once the law has been implemented, you believe you are harmed, make your case then. We have not ruled on the fundamental claim you are making as a constitutional issue; you have not been harmed and possibly never will be. We have said only that we will not reach your core claim today, and -- which is why we refuse to go further -- perhaps it will not ever be necessary to reach to the constitutional claim.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
(The Steel Seizure Case)

Mr. Justice Frankfurter, Concurring

The Framers, however, did not make the judiciary the overseer of our government. They were familiar with the revisory functions entrusted to judges in a few of the States, and refused to lodge such powers in this Court. Judicial power can be exercised only as to matters that were the traditional concern of the courts at Westminster, and only if they arise in ways that to the expert feel of lawyers constitute "Cases" or "Controversies." Even as to questions that were the staple of judicial business, it is not for the courts to pass upon them unless they are indispensably involved in a conventional litigation -- and then only to the extent that they are so involved. Rigorous adherence to the narrow scope of the judicial function is especially demanded in controversies that arouse appeals to the Constitution. The attitude with which this Court must approach its duty when confronted with such issues is precisely the opposite of that normally manifested by the general public. So-called constitutional questions seem to exercise a mesmeric influence over the popular mind. This eagerness to settle -- preferably forever -- a specific problem on the basis of the broadest possible constitutional pronouncements may not unfairly be called one of our minor national traits. An English observer of our scene has acutely described it:

At the first sound of a new argument over the United States Constitution and its interpretation, the hearts of Americans leap with a fearful joy. The blood stirs powerfully in their veins, and a new lustre brightens their eyes. Like King Harry's men before Harfleur, they stand like greyhounds in the slips, straining upon the start.

The Economist, May 10, 1952, p. 370.

The path of duty for this Court, it bears repetition, lies in the opposite direction. Due regard for the implications of the distribution of powers in our Constitution and for the nature of the judicial process as the ultimate authority in interpreting the Constitution, has not only confined the Court within the narrow domain of appropriate adjudication. It has also led to "a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision." Brandeis, J., in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 346. A basic rule is the duty of the Court not to pass on a constitutional issue at all, however narrowly it may be confined, if the case may, as a matter of intellectual honesty, be decided without even considering delicate problems of power under the Constitution. It ought to be, but apparently is not, a matter of common understanding that clashes between different branches of the government should be avoided if a legal ground of less explosive potentialities is properly available.

Bravo. This is the Rule of Law.

For seven long years we have watched the criminals of the Bush/Cheney administration refuse to enforce the law, and the Republican Party turn away.

Yesterday, The Supreme Court said, this Court stands for the rule of law. All four liberal Justices agreed, just as they did in Hamdan v. Rumsfeld.

I am shocked this decision was not 9-0. Even Justice Thomas understands one of the central functions of the Courts is, when it is possible to not reach to an answer, it is necessary to not reach to an answer (with rare exceptions.) This is called judicial restraint. It is a fundamental part of how our Courts, the law, and the Separation of Powers work. If the Courts did not so restrain themselves, soon the Courts would be interjecting themselves into every damn thing willy-nilly, and the last bastion of freedom from tyranny we have would be lost to politics.

My deep congratulations to the Supreme Court for demonstrating that -- at least when it isn't fractured along political lines -- the Court can still be trusted to follow the Rule of Law.