The War of Strategic Deferrals

An interesting article by Warren Richey about whether the Supremes will “trim” the appalling Military Commissions Act. My guess, as Richey suggests, is that the Court will do pretty much nothing–Kennedy invited Congress to act, and it did. These kinds of interactions between courts and legislatures have long been a hobbyhorse of mine, and I was happy to see the always-excellent Dahlia Lithwick tackle the subject recently in the WaPo:

Congress gives in to the temptation of passing bills that are of questionable constitutionality because it’s easy and convenient. Political expediency seems to trump constitutional principle. The elected branches need never defy the popular will if the courts are available to do so instead. And those members of Congress who insist that the courts should stay out of Congress’s business should recognize Congress for the enabler it has become. It’s a two-way street: The courts work with what Congress sends them and sometimes Congress purposely sends them unconstitutional legislation, because it is politically expedient to do so.

That’s why lawmakers who know that legislation to ban flag burning violates the First Amendment regularly trot it out anyway. It is an easy way to mollify voters, while letting some other branch grapple with what the Constitution requires. As a bonus, lawmakers then can blame the courts for usurping the will of the electorate, turning an ordinary political pander into an Olympic-worthy double-pander.

When people focus on the democratic problems with judicial review, they generally speak about the courts “usurping” democratic majorities. This isn’t terribly useful: courts tend to go along with public opinion and fairly reliably reflect the median opinions of governing elites, American political institutions are majoritarian in neither theory nor practice, and courts can rarely win serious long-term power struggles with the political branches. The bigger problem is the extent to which judicial review can lead to the diffusion of responsibility that is already a serious problem in a separation-of-powers system. Using the courts as a crutch to propose and sometimes pass clearly unconstitutional legislation breed disrespect for important constitutional values. In addition, using the courts to defuse difficult issues often fails. Sometimes, as with slavery and Dred Scott, the Congressional majority gets the ruling it was looking for, but subsequent blunders by elected politicians destroy the coalition anyway. In other cases–and this is the risk of deferral–the courts unpredictably. George W. Bush signed campaign finance legislation he apparently considered unconstitutional, probably with the assumption that the Supreme Court would strike down significant elements–but it didn’t.

Alas, this legislation is very likely going to fall into the latter category. If Arlen Specter and other Fraud Caucusers really thought the Court was going to save them from themselves, given the Court’s general deference on “national security” issues and the signals sent by Kennedy’s median opinion, I think they’re deluding themselves.

…Gary Farber has more.