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Source link: http://archive.mises.org/9831/the-case-for-judicial-lobotomy/

The Case For Judicial Lobotomy

April 22, 2009 by

Readers of this website should be familiar with the arguments against “libertarian centralism” advanced by Stephan Kinsella, Gene Healy, and others. The argument is generally rooted in the Constitution’s Fourteenth Amendment, and whether it allows federal courts to exercise veto power over the acts of state and local governments. The pro-centralism forces – led by Beltway groups including the Cato Institute and the Institute for Justice – have invested substantial resources pursuing federal litigation to “advance liberty.” The anti-centralists (and I am one) view that as a contradiction in terms.

After thinking about some of the more inane examples of recent Supreme Court jurisprudence – Kelo v. New London, Lawrence v. Texas, and the forthcoming decision in the California child abuse case – another course of attack occurred to me: What if the Supreme Court’s appellate jurisdiction was eliminated in its entirety? In other words, imagine a federal court system where no appeals were permitted beyond the 13 circuit courts of appeal. (The Supreme Court could be retained for ceremonial purposes and to exercise “original jurisdiction” in a handful of cases, like border disputes between the states.) Would such a system prove to be a net positive or negative for liberty?Unlike the circuit courts, which most hear most appeals presented, the Supreme Court has been allowed to cherry pick its cases since Congress delegated that power in 1925. In the last completed term, the court disposed of just 70 cases by written opinion. The overall balance of individual liberty would scarcely be harmed by eliminating six dozen or so glorified journal articles authored by nine unelected judges and their 30-plus recent law school graduates.

The knee-jerk reaction to eliminating the Supreme Court’s appellate jurisdiction is that there would no longer be a “final arbiter,” but the Gang of Nine rarely resolves any genuinely thorny legal question – especially if it involves substantive rights. The justices are quite adept at establishing vague “tests” for constitutionality, but the details are almost always left to the lower courts. The Supreme Court is only a “final” arbiter in the sense that its Oz-like mystique lulls people into thinking a problem has been solved for good.

But the real value in abolishing Supreme Court appeals is that it would end the permanent carnival of jurisprudence that surrounds the process: No more amicus briefs from Beltway groups – including an alarmingly high number of self-described “libertarian” outfits – that waste dollars and man hours; no more Imperial Guard of Supreme Court clerks who dominate the appeals process without even the pretense of public accountability; no more ex-clerks trading on their “experience” to secure high-paying posts with law firms and law schools; no more soap operas over nominating and confirming justices; and most importantly – a goodbye, farewell, and Amen to the notion that a five-to-four majority will magically solve our most pressing social problems.

Now on the other side, eliminating Supreme Court cover would finally divert resources to shedding light on the regional appellate courts. This is what centralists often fail to grasp: When you centralize authority, people stop paying attention to the intermediate and lower levels. When Congress gave itself more power, the state legislatures became irrelevant (a process greatly abetted by the Seventeenth Amendment.) The appellate courts already do the lion’s share of federal judicial work, but the Supreme Court functions as a bright, shiny object that distracts most laypersons.

But let’s make one thing clear. Decentralization is not an argument for “regulatory competition,” which is a fetish among some libertarians. Competition is only meaningful in a market (private property) context, and not when discussing state actors. The argument is not that “competition” among the circuits will produce better justice; rather, it’s that overall damage to liberty will be minimized when the highest and least accountable portion of the bureaucracy is eliminated. The circuit courts can still do plenty of damage on their own, but ideally that damage would be better contained.

Libertarian centralists may condemn my proposed “judicial lobotomy” as simply the first stage in dismantling the entire federal judicial system. And, of course, they’d be right. Ultimately, there’s a philosophical gorge that can’t be jumped. The Supreme Court is a major impediment to individual liberty. All the Beltway think tanks and all the libertarian public interest lawyers can’t change that. And despite all the statist mythology, there’s nothing logical about concentrating the nation’s “judicial power” in nine individuals with life tenure and few connections to the world outside the court house. I’d rater take my chances scattering the state’s wretched judicial power among 200 or so circuit judges.

{ 9 comments }

Christiaan April 22, 2009 at 10:19 pm

I’m guessing this debate will split along the standard minarchist / anarchist devide. I’ll join the latter camp for now.

What it really comes down to is the need (or lack thereof) for a central, omnipotent authority to which we all can turn for guidance on what is right and what is wrong. Underlying this is of course the desire for a single rule book dictating how the game must be played. You’ll have to convince the pro-centralists that we should all be allowed to make up our own rules before they’ll let you tear down the supreme court.

That’s what will ultimately happen after you’ve performed the lobotomy since federal law will be different in every circuit and thus the federal government’s powers vastly reduced. Near instantaneously every circuit will further subdivide, most likely down to state level. The interpretation of the law will slowly diverge in different jurisdictions, leading ultimately to people using different rule books depending on which court presides over them.

I’m assuming you’ll propose some form of arbitration process when several jurisdictions might be involved in the dispute.

Perhaps private courts will be even better in any case.

Donavan April 23, 2009 at 1:14 am

This debate doesn’t have to have any minarchist/anarchist tone to it. This is really a rethinking of the role of the Supreme Court.

The current appellate case load (and thus the interpretation of existing laws) is already handled by the lower courts, by and large. I agree that no truly controversial issue is really ever solved by the Supreme Court. It is usually just another opinion used as precedent by the lower courts to determine the current interpretation of laws.

The current reality is that the highest court in the land really acts as an additional political arm that tries to “steer” current laws to “fit the times”, which usually means altering the law by means of court decision. This is no more apparent than in the case of “right to privacy” rulings. All cases regarding right to privacy don’t have any constitutional founding: Depending on the case at hand, there may be many or no components of the constitution that actually apply. The “right to privacy” is a construct generated purely by the court.

Removing final appellate duties from the Supreme Court doesn’t change the existing process much at all. However, it does remove a “relief valve” in law interpretation. It is generally understood that the high court only decides court cases involving constitutional questions. Without a final court to determine the “guaranteed” law of the land, it would be increasingly likely for a court to declare laws invalid, or throw the question back up to the legislative body for clarification. This is not a bad thing at all: If two district courts disagree on the meaning of a given law, the reviewing court (whoever is second and disagrees with the precedent of the first), they can simply declare the law unenforceable in its given form. Parties to the given dispute are given an “interim” decision that is binding, but they have leave to re-submit their complaint with the court once the law has been clarified. Applied to the constitution, this can have a net effect of asking the states to adopt new amendments if the decision of the court is not to their liking. Case law is filled with contradictory interpretation of individual cases: Without a Supreme Court, these contradictions would either be accepted as acceptable, or if not, would be clarified by the legislature.

Note: This argument stands on the existing commonly held view that the Supreme Court has been generally relegated to dealing with cases involving judicial review, which has a checkered past of its own.

However, there are some, limited things that the Supreme Court is good for. In addition to its ceremonial value, it acts as a standards body to help lower courts operate. Most procedural rules for courts are determined by the Supreme Court, which works well as evidenced by the relative lack of controversy over the rules. This is why, during confirmation hearings, the Chief Justice is asked many questions regarding how they would administer the courts.

I hold the view that the Supreme Court need not have appellate jurisdiction over anything: District courts are perfectly capable of handling that function. However, there is one huge problem to that: The Constitution leaves it to Congress to determine the makeup of the district courts. In order to affect the change you want, we’d need to establish via amendment the composition of those courts, otherwise Congress can at whim change all judiciary makeup, which was definitely not what the framers intended.

I heartily agree that a decentralized judiciary body would be more effective. We only need a constitutional amendment to do it right. However, the supreme court would still be valuable with its current appointment and term process as a largely administrative body.

We would also need to truly firm up the notion of judicial review, which is an area which the Constitution was silent on (much to my personal dismay), and is still an open question today.

Jim Chappelow April 23, 2009 at 8:01 am

You’d also need to give each circuit court geographically exclusive jurisdiction. Otherwise conflicting decisions by different courts would require some kind of compromise or reconciliation mechanism to determine the “law of the land”. This would still essentially be a centralised court system, and we understand what this leads to. But any such alternative mechanism would also consistently tend toward compromise that expands stare power, just as we’ve seen with the historical record of legislative compromise in congress. Exclusive geographic jurisdiction would provide real decentralization and some competition beween regions (though I know this was not the intent of the origianl post).

S.M. Oliva April 23, 2009 at 9:22 am

< <"You'd also need to give each circuit court geographically exclusive jurisdiction. Otherwise conflicting decisions by different courts would require some kind of compromise or reconciliation mechanism to determine the "law of the land".>>

How does one confer “geographically exclusive jurisdiction”? Many cases involve parties from different geographic areas. Who has “exclusive” jurisdiction when a California resident sues a Delaware corporation? For that matter, how can international disputes be resolved in the absence of “exclusive” jurisdiction? Particularly in the internet age, this is an outmoded ideal. You’re simply restating the thesis for centralism.

Brad April 23, 2009 at 2:18 pm

“After thinking about some of the more inane examples of recent Supreme Court jurisprudence… Lawrence v. Texas”

I’m basically in agreement with you that the Supreme Court is useless, but I don’t see what is so libertarian about favoring “sodomy” legislation. Can it seriously be argued that consensual sexual acts can be banned under libertarian law?

Furthermore, the California “Child” Abuse case is not actually referring to a child, as it can hardly be argued that a 13-year-old is a “child,” despite what the government’s absurd laws say. Personally, I consider strip searching to be a form of sexual assault, but under libertarian law, I don’t see how it can be rationally argued that the “age of consent” (if there would be such a thing) would be above the pre-”Progressive” Era “age of consent” of either 10 or 12.

I’m definitely in favor of abolishing the Supreme Court and the rest of the criminals in DC, but that doesn’t mean that I would compare a Supreme Court case overturning a law against consensual sex with a Supreme Court case allowing the government to steal land and give it to politically-connected corporations. Although both decisions are contrary to the Constitution, there is no comparison between a Supreme Court decision that overturns a law that violates libertarian principles and a Supreme Court decision that upholds an act of theft.

I would expect a professed libertarian to be more familiar with basic points of libertarian principle. Libertarianism is not conservatism. Pretending that libertarianism is conservatism alienates people, especially the younger generation (a generation that isn’t “liberal” so much as anti-conservative, in particular anti-social conservative and anti-neo-con) that needs to be converted if libertarianism will ever be successful.

For libertarians, the goal is not “decentralization” per se, but rather libertarianism.

David Spellman April 23, 2009 at 2:24 pm

While we are at it, why not gut Federal jurisdiction over anything not explicitly authorized in the constitution? No legislative, executive, or judicial authority in any area not specifically enumerated as a federal power. Certainly no appellate jurisdiction of federal courts over state courts.

Get rid of the seventeenth amendment and the fourteenth amendment and the sixteenth amendment. Go back to the concept of a limited but united group of states that could offer different approaches to government in stead of the one-size-fits-all Federal leviathan.

Fifty autonomous but united states could implement a wide variety of ways to govern and we could approximate a free market in governance. So long as property rights, civil rights, and the unlimited right of secession (e.g. you can leave if you don’t like how the state is governed), everyone could vote with their feet and choose the state with the government most beneficial to them.

In practice, there would likely be many failures leading to emigration en masse. But there would also be successes that would attract population and business and prosperity. The key result would be that people would be free to quickly adapt and relocate to the most desirable situation. Once upon a time, America was like this–you really could pull up stakes and head West and do what you pleased.

Wouldn’t it be great if we went back to a free country without a suffocating totalitarian regime? Fifty states offering a smorgasbord of government options would be a fantastic improvement. Sure, there would be Huey Longs and Tammany Halls, but there would also be Golden States and Shangri Las–if the People want them. I say give freedom a chance.

S.M. Oliva April 23, 2009 at 3:34 pm

Brad —

Thank you for the lecture on what it means to be a “true” libertarian. I never get tired of those.

To elaborate my own views, I actually have no problem with the Lawrence decision per se, and had I been a member of the court, I would have voted to strike down the law as anti-libertarian (though not necessarily unconstitutional.) But I do consider it “inane” that the Texas statute couldn’t be dealt with at the local level from whence it originated. Invoking the Supreme Court’s faux-mystique only reinforces the notion that people need a strong federal state to protect their liberties.

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