July 14, 2024

by Stephen Stofka

This week’s letter is about expectations and alliances of judicial reasoning and power. I will begin with some background on the judiciary, then follow up next week with a closer look at the rationales that various schools of judicial reasoning employ to reach their desired conclusion.

The legislature has 535 individual opinions of what is fair and just, as many interpretations of statutory and Constitutional text, and many prescriptions of what should be done to address a problem. Party leaders must collapse those many dimensions into a singularity, a sheet of paper that becomes law. As laws emerge from the halls of Congress, they become a multi-faceted work of collaborative reasoning. Businesses hire lawyers to reinterpret a piece of legislation in their favor, or to defend against regulatory action. The executive agency responsible for administering or enforcing the law has its own opinions of what the law says and how it should be executed. Judges in federal district courts weigh in with their opinions as they rule on cases and controversies brought before them.

Those opinions may be challenged in federal appellate courts then submitted to the Supreme Court asking them to take the case for review, a petition  called a “writ of certiorari.” Of the many cases submitted, the Court accepts only a small number – 62 in the 2023-24 session, according to Ballotpedia. Lawyers for the plaintiff and respondent argue their opinions to the Court, which reviews those arguments as well as amicus briefs submitted by advocate groups on either side of an issue. Again, many opinions collapse into a judgment won by a majority of the Court’s justices. In some cases, they simply refer the case back to a lower court with a clarifying interpretation of a legal area that the lower court should include in its consideration of the case.

The Constitution contains three articles that establish the Legislature, Executive and Judiciary. Article 3 authorizing the Judiciary is only 373 words, less than the word count required of a fourth-grade essay. Article 2 establishing the Executive branch is three times longer. Article 1 instituted the Legislative branch and is almost eight times as long. The principle of judicial review, that the courts can decide whether portions of laws passed by the legislature conflict with the Constitution, is not cited in Article 3. How did the Judiciary assume that plenary power?

The ruling in an 1803 case titled Marbury v. Madison decided that Marbury, the plaintiff, did not have standing to sue Madison, the Secretary of State under Thomas Jefferson. The decision was less noteworthy than the reasoning supporting the decision. The Court, headed by Chief Justice John Marshall, ruled that a portion of the Judicial Act passed in 1789 conflicted with Article 3, Section 2 of the Constitution. In that decision, Marshall assumed the right of the Court to have the final word on the meaning of statute and Constitutional text. A strict textualist interpretation of the Constitution would argue that the Marshall court had found a clever way to amend the Constitution. In recent decades textualist interpretations of the law have gained popularity among conservative justices. This branch of analysis emerged as a reaction to the purpose-oriented jurisprudence typical of the Court’s opinions in the sixties and seventies.

After WW2, voters gave Democrats an average 81 seat advantage in the House (Kraft & Furlong, 2021, p. 345), an effective mandate. In the current House, Republicans have only a 7-seat advantage. Many House members were World War 2 veterans, determined that the sacrifice of their military brothers in the fight for freedom would not be subjugated to racial practices that suppressed the freedoms of Black people, including those soldiers who had fought in the war. In 1962, Rachel Carson’s book Silent Spring focused popular attention on the sewage and dangerous chemicals that contaminated the nation’s air and water. As veterans gained seniority in Congress, they were able to pass civil and environmental reforms. In a surge of anti-Republican sentiment following the Watergate scandal, voters in the 1976 election handed Democrats a 150-seat advantage in the House.

A Constitution should thwart the human inclination to shape laws to suit to one’s advantage. The Supreme Court, headed by Chief Justice Earl Warren, established, or re-established depending on one’s perspective, several Constitutional principles of equality that upset relationships of power at the state and local levels. Shortly after President Eisenhower appointed Warren to head the Court, it issued its Brown v. Board of Education decision that established the principle that segregated schools in southern states were not equal. George Wallace, the Governor of Alabama, defied federal efforts to desegregate the state’s schools. In his campaign for President a decade later, he rallied his followers with the cry “segregation today…segregation tomorrow…segregation forever.”

The Court’s reliance on the equal protections of the 14^th Amendment provided the rationale for other reforms, including Reynolds v. Sims (164), the “one person, one vote” decision. In several states, a dwindling population of rural voters maintained control of the state legislature through imaginative schemes. In Kentucky, districts were apportioned according to the mileage of the roads in the county, not the number of voters. In Tennessee, the legislature had not changed district apportionment since 1901, a move that disadvantaged the growing urban population of that state. In Vermont, 49 people in one district had equal representation with 33,000 in another state district. Other individual protections included the Miranda warning upon arrest, the protection from search and seizure by state and local officials without a warrant,  and the freedom to buy contraceptives in the Griswold ruling.

Some considered these rulings an intrusion on state and local autonomy and antithetical to the conservative principle of limited government. In the final year of the Warren Court and the close of the 1960s decade, Nixon encouraged a “silent majority” of traditionalists to reject the reforms and societal upheavals of the past decade. Nixon sought to wake the sense of grievance in a coalition of conservative minorities. In 1973, a volatile combination of events – the Watergate hearings, an oil embargo touched off by America’s role in the Arab-Israeli war, an 8.8% inflation rate, and the Court’s Roe v Wade decision – stirred up a backlash of traditionalist fervor that would gain momentum over the next two decades. Next week I will examine those alliances of power.

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Photo by Wesley Tingey on Unsplash

Keywords: silent majority, Watergate, Roe v. Wade, segregation, Supreme Court

Kraft, Michael E., and Scott R. Furlong. 2021. Public Policy: Politics, Analysis, and Alternatives. Thousand Oaks, CA: CQ Press.