a problem we could fix

Posted on May 24, 2004 by Lessig

“It’s extremely difficult to govern when you control all three branches of government.” John Feehery, spokesman for House Speaker Dennis Hastert, Washington Post, 5/23/04.

And when did political parties begin to claim “control” of the Judicial Branch? Someone should inform the Justices. I don’t think they’ve been told yet.

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11 Responses to a problem we could fix

  1. Seth Finkelstein says:
    May 24, 2004 at 11:13 pm

    “And when did political parties begin to claim “control” of the Judicial Branch?”

    Bush v. Gore

    “Someone should inform the Justices. I don’t think they’ve been told yet.”

    Oh yes they have:

    Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

    [Not that I’m trying to start a flame-war – but the straight-line/riposte seemed so obvious …]

  2. James Day says:
    May 25, 2004 at 6:45 am

    They proximately began to do it on March 9, 2004 with the introduction of the Congressional Accountability for Judicial Activism Act of 2004:

    “The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court … to the extent that judgment concerns the constitutionality of an Act of Congress.”

    So, no more Constitution, in effect, because won’t be able to regulate the populists in Congress who will always be swayed by the fashion and discriminatory tendencies of the majority.

  3. glen says:
    May 25, 2004 at 7:48 am

    And when did political parties begin to claim �control� of the Judicial Branch?

    I think it happened some time around 1937…

    The Court in addition to the proper use of its judicial functions has improperly set itself up as a third house of the Congress – a super-legislature, as one of the justices has called it – reading into the Constitution words and implications which are not there, and which were never intended to be there.

    We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men.

    I want – as all Americans want – an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by the arbitrary exercise of judicial power – in other words by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts which are universally recognized.

    How then could we proceed to perform the mandate given us? It was said in last year’s Democratic platform, and here are the words, “if these problems cannot be effectively solved within the Constitution, we shall seek such clarifying amendments as will assure the power to enact those laws, adequately to regulate commerce, protect public health and safety, and safeguard economic security.” In their words, we said we would seek an amendment only if every other possible means by legislation were to fail.

    When I commenced to review the situation with the problem squarely before me, I came by a process of elimination to the conclusion that, short of amendments, the only method which was clearly constitutional, and would at the same time carry out other much needed reforms, was to infuse new blood into all our courts. We must have men worthy and equipped to carry out impartial justice. But, at the same time, we must have judges who will bring to the courts a present-day sense of the Constitution – judges who will retain in the courts the judicial functions of a court, and reject the legislative powers which the courts have today assumed.

    FDR, Fireside Chat on Reorganization of the Judiciary, March 9, 1937

  4. Alan says:
    May 25, 2004 at 8:25 am

    I would think a more recent and continuing example of judicial “legislative involvement” is the test of their stance on Roe v Wade as to whether or not a judicial candidate has any hope of getting through.

    You’d think it would be irrelevant because the judiciary should be ruling on the law (not what they think of it).

    Unfortunately, as we’ve seen, the judiciary has become a defacto legislative arm of the government (statists 1, constitution/citizens – 0)

  5. Matthew Saroff says:
    May 25, 2004 at 8:36 am

    Glen, FDR DESERVEDLY got his head handed to him over his attempt to pack the court.

    FWIW, the fact that the low point of his administration is compared to business as usual for the right wing (Save the flag by wiping your ass on the constitution) is telling.

  6. subduedcitizen says:
    May 26, 2004 at 6:09 am

    I also thought this was a funny comment but I wonder if he really meant to refer to the three parts of the federal government that are (usually) elected – the House, Senate and Presidency.

  7. WJM says:
    May 27, 2004 at 10:09 am

    he Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court � to the extent that judgment concerns the constitutionality of an Act of Congress.�

    What happens when the Supreme Court declares that provision unconstitutional?

  8. rod says:
    May 27, 2004 at 4:39 pm

    when were they told? cheney explained it to scalia on air force two, but scalia said he had inferred it in December 2000.

  9. Beau Vrolyk says:
    May 27, 2004 at 6:05 pm

    I’m certain that the folks who appointed them, feel they own ’em. Seems pretty darn clear to me.

  10. lessig says:
    June 2, 2004 at 7:47 am

    Just what Nixon thought about Blackmun, till he authored Roe v. Wade.

  11. Aaron Swartz says:
    June 4, 2004 at 10:07 am

    While Seth gave the obviously correct answer, I suspect Feehery might have actually meant the Presidency, the Senate, and the House.

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