1702692915

1702692916 There followed, in quick succession, a series of closely divided decisions that constricted congressional authority not only under the Commerce Clause but also under the Fourteenth Amendment. Section 5 of the Fourteenth Amendment gives Congress “the power to enforce, by appropriate legislation, the provisions of this article”—namely, the guarantees of due process and equal protection provided by the amendment’s Section 1. The question that came to the fore as the federalism revolution of the 1990s proceeded was the meaning of “enforce” and the breadth of Congress’s Section 5 authority. Was Congress’s power limited to enforcing only those interpretations of due process and equal protection that had been adopted by the Supreme Court? Or did Congress have substantive authority to legislate on the basis of its own constitutional views?

1702692917

1702692918 This issue was joined in a dispute over protection for the free exercise of religion that first divided the justices and then became the source of conflict between the Court and Congress. In a 1990 decision, the Court had withheld protection from individuals who claimed that their religious beliefs required an exemption from a generally applicable law. In that case, Employment Division, Department of Human Resources of Oregon v. Smith, the Court ruled that American Indians who used the hallucinogenic drug peyote in religious rituals were not constitutionally entitled to unemployment benefits when they were fired for violating their employer’s rule against drug use.

1702692919

1702692920 Congress responded promptly by passing a statute, provocatively titled the Religious Freedom Restoration Act (RFRA). The new law provided that a statute that appeared neutral on its face could not be applied in a way that placed a burden on the practice of religion unless the government could show that the burden served a “compelling interest.” A Roman Catholic parish in Boerne, Texas invoked RFRA, seeking to demolish an old church that was protected under a historic preservation code in order to build a new and bigger one. The church argued that RFRA entitled it to an exemption from the code. In response, the city argued the Religious Freedom Restoration Act was unconstitutional. The Section 5 enforcement power entitled Congress to enact legislation to remedy a violation of a constitutional right, the city argued, but not to legislate a more expansive definition of the right itself than the Supreme Court had provided.

1702692921

1702692922 In a 6 to 3 decision, City of Boerne v. Flores (1997), the Supreme Court agreed with the city. Congress’s enforcement power was merely “remedial and preventive,” the Court said, rejecting “any suggestion that Congress has a substantive, nonremedial power under the Fourteenth Amendment.” The majority opinion, written by Justice Kennedy, struck a formal separationist tone.“When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is,” Justice Kennedy wrote, invoking the familiar words of Chief Justice Marshall in Marbury v. Madison. He concluded: “Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.”

1702692923

1702692924 The Rehnquist Court majority used similar interpretations of Section 5 and of the Commerce Clause to overturn other statutes, including the Violence Against Women Act, which permitted women who were victims of gender-motivated violence to sue their attackers in federal court (United States v. Morrison, 2000). The Court also ruled that states could not be bound, as employers, by the federal laws against employment discrimination, either on the basis of age (Kimel v. Florida Board of Regents, 2000) or on the basis of disability (Board of Regents of the University of Alabama v. Garrett, 2003).

1702692925

1702692926 Then in 2003, led by Chief Justice Rehnquist himself, the Court unexpectedly reversed course, turning back a similar constitutional challenge to the Family and Medical Leave Act.

1702692927

1702692928 The law required state employers, along with private employers, to give their employees time off to attend to family emergencies. States that failed to follow the law were not immune from suit, Chief Justice Rehnquist wrote for the majority. With this decision, Nevada Department of Human Resources v. Hibbs, the federalism revolution appeared to have run its course. But history teaches that the apparent hiatus in this particular aspect of the contest between the Court and Congress is only temporary. Whether “temporary”means years or decades is an open question.

1702692929

1702692930 The struggle between the Court and the president, dramatically present in cases growing out of the Bush administration’s response to the terrorist attacks of September 11, 2001, has deep roots as well as current resonance. President Andrew Jackson’s often-quoted response to a Supreme Court decision favoring the Cherokee Indians—“John Marshall has made his decision. Now let him enforce it”—is in fact probably apocryphal. But it has lingered in the public imagination because it so well captures what we suppose presidents have wished they could say to the Supreme Court. Richard Nixon, ordered to surrender the incriminating Watergate tapes (United States v. Nixon, 1974), and Bill Clinton, deprived of immunity from a civil lawsuit by a woman claiming sexual harassment (Clinton v. Jones, 1997) are among the chief executives who come to mind.

1702692931

1702692932 The Supreme Court’s response to President Truman’s intervention in a wartime labor dispute in 1952 remains, more than half a century later, the symbol of the Court’s power to reject an urgent claim of presidential authority. Much more than a symbol, in fact: the Steel Seizure case, as Youngstown Sheet & Tube Co. v. Sawyer is commonly known, has been cited by the Court in recent years in resisting presidential claims of unilateral authority over detention policy at Guantanamo Bay.

1702692933

1702692934 Under Truman’s order, the federal government took control of the nation’s steel mills to forestall a steelworkers’ strike that could have shut down the country’s armament-making capacity in the midst of the Korean War. The industry went to Federal District Court to challenge the action. The case moved forward with a great sense of urgency, proceeding from the filing of the lawsuit to the final Supreme Court decision in less than two months. The Court, all the members of which had been appointed by Roosevelt and Truman, ruled against the president by a vote of 6 to 3. Justice Hugo L. Black’s majority opinion rejected the president’s claim that despite the absence of explicit statutory authority, his power to act was inherent in Article II of the Constitution. Justice Robert H. Jackson joined that opinion while also filing a separate concurring opinion. It is the Jackson opinion that is most often cited as defining the boundaries of presidential authority.

1702692935

1702692936 Justice Jackson divided the universe of possible presidential actions into three categories, which he described as “a somewhat over-simplified grouping of practical situations in which a president may doubt, or others may challenge, his powers.” First,“When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Second, Justice Jackson defined a “zone of twilight” in which “the president acts in absence of either a congressional grant or denial of authority.” He then “can only rely upon his own independent powers,” and whether that reliance is legitimate “is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” Finally, “When the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” Jackson placed the steel seizure in the third category, finding that Congress had enacted three statutes that were inconsistent with the president’s action. “The executive action we have here originates in the individual will of the president and represents an exercise of authority without law,” he concluded.

1702692937

1702692938 Like President Truman, the second President Bush claimed that Article II itself gave him the authority to establish military commissions for the war-crimes trials of individuals held as enemy combatants at the United States naval station at Guantanamo Bay. And like the Court in the Steel Seizure case, the five justices in the majority in Hamdan v. Rumsfeld (2006) concluded that the claim of inherent authority was insufficient. In his majority opinion, Justice Stevens mentioned the Steel Seizure decision in a footnote. Justice Kennedy, in a concurring opinion joined by three other members of the majority, relied explicitly on Jackson’s Steel Seizure framework. Rather than place the president’s military commissions in Jackson’s second category (congressional silence), Justice Kennedy found that the commissions as designed by the president came within Jackson’s third category: presidential actions that were incompatible with explicit provisions of federal law.

1702692939

1702692940 The Hamdan case was neither the Court’s first encounter with the Bush administration’s detention policies, nor its last. Two years earlier, in Rasul v. Bush (2004), the Court rejected the administration’s effort to place the detainees beyond the jurisdiction of federal judges. The Court ruled that the military base in Cuba was functionally part of the United States, and thus that as a matter of statutory interpretation, federal courts had jurisdiction under the habeas corpus statute to hear the cases in which hundreds of detainees were challenging the basis for their open-ended confinement. Eventually, with Congress and a frustrated president working together, Congress stripped the federal courts of jurisdiction to hear any habeas corpus petition filed by a Guantanamo detainee. In Boumediene v. Bush, decided in 2008 by a vote of 5 to 4, the justices declared this court-stripping provision to be unconstitutional.

1702692941

1702692942 This intense cycle of action and reaction, the ball passing rapidly back and forth between the Court and the political branches, then came to a pause as a new president took up residence in the White House. Cases reflecting domestic rather than foreign policy concerns began to fill the judicial pipeline. No one could suppose, however, that the pause in the age-old contest between the Supreme Court and the president was more than momentary.

1702692943

1702692944

1702692945

1702692946

1702692947 美国最高法院通识读本 [:1702690388]

1702692948 美国最高法院通识读本 Chapter 7The Court and the public

1702692949

1702692950 Judges “do not stand aloof on these chill and distant heights,”Benjamin N. Cardozo once said. “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.” Cardozo was a state court judge, not yet a Supreme Court justice, when he delivered those words in 1921, at the conclusion of a series of lectures on “the nature of the judicial process.” His words ring true these many years later, while also hinting at a mystery. Given that judges, Supreme Court justices among them, live in the world, how do their perceptions shape their judging? More specifically, what is the relationship between the Supreme Court and the public?

1702692951

1702692952 Justices themselves have had something to say on this subject. “We all rely on public confidence and trust to give the courts’ decisions their force,” Justice O’Connor said in a lecture on “public trust as a dimension of equal justice.” She explained: “We don’t have standing armies to enforce opinions, we rely on the confidence of the public in the correctness of those decisions. That’s why we have to be aware of public opinions and of attitudes toward our system of justice, and it is why we must try to keep and build that trust.”

1702692953

1702692954 Chief Justice Rehnquist said it would be “remarkable indeed” if judges were not influenced by the broad currents of public opinion.“Judges, so long as they are relatively normal human beings, can no more escape being influenced by public opinion in the long run than can people working at other jobs,” he said in a lecture on “constitutional law and public opinion.” Further, he added, “if a judge on coming to the bench were to decide to seal himself off hermetically from all manifestations of public opinion, he would accomplish very little; he would not be influenced by current public opinion, but instead would be influenced by the state of public opinion at the time he came to the bench.”

1702692955

1702692956 In their somewhat different formulations, these judicial colleagues with distinct approaches to judging were in agreement that a judge’s awareness of public opinion is not only inevitable but desirable, even necessary. And these two justices put their observations into practice. Chief Justice Rehnquist was for years a vigorous critic of the Court’s decision in Miranda v. Arizona, the 1966 ruling that requires the police, before interrogating a suspect in custody, to deliver the now-familiar warnings about the right to remain silent and the right to counsel. But when the Supreme Court had the opportunity to overturn Miranda in 2000, the chief justice led the Court in the opposite direction. Instead of overturning Miranda, his majority opinion in Dickerson v. United States declared unconstitutional an effort by Congress to overturn the decision legislatively. “ Miranda has become embedded in routine police practice to the point where the warning has become part of our national culture,” Rehnquist wrote.

1702692957

1702692958 Justice O’Connor had been a critic of affirmative action throughout more than twenty years on the Court when a case arrived challenging an effort by the University of Michigan Law School to increase the racial diversity of its student body by means of an admissions policy that took into account an applicant’s race. O’Connor voted to uphold the plan and wrote the Court’s majority opinion in the case, Grutter v. Bollinger (2003). She cited briefs filed on the law school’s behalf by educational leaders, corporate executives, and military officers. “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity,” is how O’Connor summarized the core of the argument for the law school’s position. She left little doubt that she had been persuaded not only by this argument but by the fact that it was put forward by those representing a broad segment of elite opinion.

1702692959

1702692960 It is not necessary to conclude that either of these justices experienced sudden epiphanies when confronted with cases that put their own frequently expressed principles to a concrete and highly visible test. The point is rather that each considered the case at hand not as an abstract legal proposition but as a dispute arising in a social and political as well as legal context. It is not necessary to agree with either outcome—indeed, Rehnquist dissented in the Michigan case and denounced the law school’s admission plan as “a naked effort to achieve racial balancing”—in order to appreciate that the majority in both saw itself as navigating on a sea of public opinion.

1702692961

1702692962 Scholars regard the relationship between the Supreme Court and public opinion as elusive. Lee Epstein and Andrew D. Martin, two leaders in the empirical study of judicial behavior, titled an article:“Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why).” The article surveyed the political science literature on the question, much of it inconclusive and contradictory. At best, the authors conclude, there seems to be an association between the Court and public opinion, but not enough evidence to “make the leap from association to causality,” that is, to prove that public opinion actually influences the Court.

1702692963

1702692964 But in any event, public opinion does not travel a one-way street. While the public may influence the Court, at least some of the time, the Court may also influence the public. One classic image, dating to early in the country’s history, is of the justices as teachers,“the Supreme Court as republican schoolmaster,” in the phrase of a well-known article that documents the role of the early justices as they rode circuit, summarizing the law in their charges to grand juries, and serving in this manner as “teachers to the citizenry.” The author concludes that “whether the justice should teach the public is not and cannot be in question since teaching is inseparable from judging in a democratic regime.”

[ 上一页 ]  [ :1.702692915e+09 ]  [ 下一页 ]