May 2009 – Page 3 – Pursuit of Liberty

Federalist Nos. 78 – 79

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I had always been taught that the Executive, Legislative, and Judicial branches were fundamentally equal in power within the federal government (checks and balances etc.) but Federalist No. 78 says otherwise:

the judiciary is beyond comparison the weakest of the three departments of power.

I wonder if my understanding is a byproduct of the power grabs by the Supreme Court from the earliest days of the nation by which it made itself the equal of the other two departments. I read the whole paper wondering if anything different could have been done regarding the term of office for judges ("during good behavior"). I considered an absolute maximum term of service and concluded that it would have no positive effect. Hamilton argues that an age limitation (the state of New York cut judges after the age of 60 at that time) was not feasible. I have concluded that it would be feasible today due to our current society whereby pensions are relatively normal. In fact, we already have a soft age limit whereby judges are allowed, but not required, to retire. We could choose to make retirement mandatory, but I don’t think we would see any benefit from such a move. My conclusion was that the judiciary was as well designed as it could have been.

The one drawback to our modern judiciary was foreseen:

The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. (emphasis original)

We have seen unfortunate cases where courts (state courts as often as federal) do not merely judge the merits of a case or a law, but order legislative bodies to act accordingly. This seems to display a misunderstanding of the power of the courts. The courts never need to order the executive or judicial branches to do something (except in cases pitting the two departments against each other). If the court rules that a law is unconstitutional the law become null – the court has no need to require the legislature to write a different law.

Federalist No. 79 addresses the provision that the salary of a judge cannot be decreased. There does not seem to be any need for discussion on this point because the reasoning is the same as for the president having a fixed salary and is equally applicable.

Judicial Appointment

Yesterday I wrote about the president’s power to nominate people for important positions in government. Today we get the news that Justice David Souter will be retiring. (This is doubly convenient as the remaining federalist papers deal with the judicial branch of our government.) I don’t intend to speculate on who the president will nominate but there are a few things we can learn from this confirmation hearing.

During the 2004 election cycle there were a number of conservatives talking up the importance of re-electing Bush because of the probability that at least one justice would be nominated in the next four years. Obama himself said last fall that the selection of a new justice would be “one of the most consequential decisions of the next president.” One difference between Obama and Bush in relation to the opportunity to make a supreme court nomination is that Obama will have a Senate majority large enough to prevent a filibuster (assuming that Al Franken is seated from Minnesota). This means that Obama may not feel any need to moderate his choice as Bush knew that he must. Bush knew that he could not nominate anyone who was too conservative for the Senate. Obama will know that there is virtually nobody with any qualification who is too liberal for this Senate.

Assuming that this confirmation goes smoothly and that the selection proves to be reliably liberal (the new justice can always surprise people on that score), I think we might know what to expect in the next few years in the Supreme Court. The most senior justice, Justice John Paul Stevens, is on the liberal side of the court and is 89 years old. If there is a fresh liberal justice from our new president and a solidly Democratic senate in place I would be very surprised if he did not choose to retire before 2012 (or even before the 2010 elections). I would also not be surprised to see Justice Ruth Bader Ginsburg choose to retire. Like Justice Stevens she is on the liberal side of the court and while she is not the next most senior justice she is the second oldest at 76 and might want to ensure that her replacement is also liberal (especially if at least one other justice is a woman by then) before there is a chance of electing a Republican president or having Democrats lose any seats in the Senate.