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Politics and Law, Courts and Congress: Reviews of Two Recent Books on the Relationship Between Two Oft-Clashing American Traditions and Institutions


By ELAINE CASSEL


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Friday, May. 05, 2006
Michael C. Dorf, No Litmus Test: Law versus Politics in the Twenty-First Century (Rowman & Littlefield, 2006)

Charles Gardner Geyh, When Courts & Congress Collide: The Struggle for Control of America's Judicial System (University of Michigan Press, 2006)

When, in the movie "The Paper Chase," Professor Kingsfield promised his first-year law students that though they had come to law school with "minds full of mush," they would leave "thinking like a lawyer," what did he mean? Do lawyers think differently from other educated people -- like politicans, for instance?

Two excellent recent books take on the struggle between law and politics being played out in the federal courts and the U.S. Congress -- one by Columbia law professor and FindLaw columnist Michael Dorf; the other, by Indiana University at Bloomington Law School professor Charles Gardner Geyh.

Dorf addresses the issue in the context of individual cases decided between 2000 and 2005. Geyh probes the institutional power struggle. Both have something to teach us about the law and politics.

Professor Dorf: Is the Gap Between Law and Politics Shrinking?

Professor Dorf holds that there's no such thing as "lawyer-think." There is, Dorf says, only clear thinking and confusion. And in his recent collection of thirty-nine articles previously published on this site, Dorf demonstrates that he knows the difference.

In dispassionate, cogent, and insightful articles written over a period of five years, Dorf has taken on most of the more troubling legal and political issues of the day. In his introduction to the collection, and in postscripts provided to each essay, he expounds on a common theme running through his writings -- the dividing line, if any, between law and politics in the decision-making in federal courts today.

Dorf argues that this demarcation is real -- and informs at least some judicial opinions. But after reading his book, the attentive reader may likely conclude that, more often than not, politics -- and confusion -- tend to reign ascendant over law and clear thinking.

Not surprisingly, many of Dorf's articles concern the hot legal -- and political -- issues emanating from the Bush administration itself. From Bush v. Gore, in which the Supreme Court decided the outcome of an election, to the limits of presidential power in the "war" on terrorism, to the Department of Justice "torture" memos, to the Administration's refusal to be bound by international law, Dorf shows us where politics has trumped the law.

Other articles deal more directly with law -- especially international law -- and the legal profession today. The book is organized into six sections, and each article concludes with a postscript to bring the reader up to date -- at least until the time the book went to press -- on the legal and political events that occurred after the article was written.

Some of the postscripts could have gone a bit further in their recounting of subsequent events. One example is the article primarily discussing the Supreme Court's 2002 decision in Atkins v. Virginia, to rule out the death penalty for mentally retarded defendants (Dorf also discusses Atkins in the context of the Justices' decision to opt -- or refuse -- to borrow from international law and standards).

Dorf could have further addressed the aftermath of that decision -- which has made little difference in reality. Atkins himself is once again facing the death penalty after a new trial found him not mentally retarded (the decision is on appeal). And because the Court left states to define what counts as mental retardation for themselves, states in which the death penalty still flourishes (notably Virginia and Texas) have been able to make it harder to prove retardation -- defeating much of the protection the Court's opinion was supposed to give. (States that have the death penalty, but are more divided on it, have laws that are a little fairer to the defendant.)

In sum, the aftermath of Atkins is a good example of local politics and culture trumping the application of the letter of the law.

While more follow-up to articles like this would have been helpful, Dorf's analysis is still insightful, provocative, and clear, and lawyers and anyone interested in these issues will find the book worthwhile.

Professor Geyh's Major Theme: Congress' Attempts to Control The Courts

Professor Geyh focuses his book not on two traditions -- politics and the law -- but on two institutions: The courts and Congress.

The crux of Geyh's argument is that the Congress and the courts are currently vying for control of the judicial system. He describes the tension between the two institutions as part of the "dynamic equilibrium" that is a necessary component of the separation of powers. Congress has its role to play, to be sure. Article III gives Congress the right to create federal courts (only the Supreme Court was established in the Constitution). There are hundreds of federal laws that delineate federal jurisdiction. Congress funds and oversees the courts. The Senate confirms judicial nominees. But in recent years, Geyh argues, the balance has been tested.

There's strong support for his point of view: In recent years, the process of confirming judicial nominees has become increasingly contentious and partisan. Congress had curtailed federal legislation in several areas, and plans to do more are on the Republicans' wish list.

For instance, Congress has already seriously limited class action law suits, and efforts to limit state medical malpractice claims continue to be a part of the Republican agenda.

Congress had also attempted to tell the states what they can and cannot do in the area of same-sex marriages, civil unions, and domestic partnerships.

With the Defense of Marriage Act, Congress has taken the position that the Constitution's Full Faith and Credit Clause does not bind states when it comes to recognizing -- or declining to recognize -- another state's marriage laws, if those laws allow same-sex marriage. Now, its proposed constitutional amendment -- defining marriage as the union of one man and one woman -- would trump states' decision to allow gay marriage, and might even put civil unions in danger, or at least limit their legal effects.

Dorf writes about how some of these issues have played out in the federal courts recently against the backdrop of the struggle between not just the Judiciary and the Congress, but the Executive branch, which has been successful in increasing its power at the expense of the other branches.

The Politicization of Appointment and Confirmation, and the Possibility of Impeachment

One of Geyh's most important chapters discusses the role of the courts in preserving their own independence. Geyh asks us to consider questions such as: To what extent are judges deserving of the independence the Constitution gives them? Do they deserve to be free of impeachment if they go outside their judicial role and "create" law?

Geyh devotes a chapter to the (thankfully) rare impeachment of federal judges. He quotes former President Gerald Ford, who said an impeachable offense is whatever a majority of the House of Representatives says it is -- meaning that impeachment is basically a political, not a legal act.

A perfect example of Ford's point is the call recently for impeachment of federal judges who are "activists." As Dorf points out in a perceptive article, the term "activist," as used in Congress, often means little more than that the judge issued a decision the lawmaker who's speaking does not agree with.

Geyh sees evangelical Christians as a major player in the goal to wrest power of the judiciary from the "liberal" judges. But he points out an irony: The evangelical Christians want to pack the court with "their" judges, who will be beholden to them -- creating not a more independent judiciary, but rather one that is political in a different way. There is no better of example of this goal than the appointment of Justice Samuel Alito, whom the evangelicals see as "their" man on the Court.

Geyh addresses the increasingly politicization of the appointment of judicial nominees -- something President Bush has not attempted to hide. Though the President claims to have, in the words of Dorf's title, no "litmus test," he has said he wants justices (and federal judges generally) who resemble Antonin Scalia and Clarence Thomas. And thus far, it seems he may have gotten just what he wanted with Justice Alito (though perhaps not with Chief Justice Roberts, who has demonstrated a bit of independence from the Administration in recent cases).

If future presidents continue to pick nominees who fit their political mold, rather than seeking out people who know how to be -- and want to be -- good judges, then the judiciary will become more like a division of the Executive Branch of government.

Justice Scalia: Joining the Partisan Critics of the Judiciary

It's no surprise that both Dorf and Geyh discuss Justice Scalia. His bitter dissents and speeches have guaranteed him a central place in the law/politics debate: Here's a Supreme Court Justice who does not shy away from politics (or politicians -- as his famous hunting trip with the Vice President underlined.) Indeed, though he has for most of his tenure stayed out of the public eye, he is increasingly making news, almost seeming to invite controversy.

Scalia thumbed his "chin" at the public after a recent church service. Then, he admonished questioners at the University of Fribourg, Switzerland to "just get over" Bush v. Gore. He told students at the University of Connecticut that not recusing himself from the Supreme Court case about Vice-President Cheney's secret energy panel, due to that very hunting trip, was the "proudest thing I have ever done on the bench." Scalia also told that same University of Connecticut audience, speaking of Bush vs. Gore: "For Pete's sake, if you can't trust your Supreme Court justice more than that, get a life."

Dorf discusses the divisive political role Scalia plays on the Court, and in Bush Administration politics. And both Dorf and Geyh take Scalia to task for some of his dissents in which he mocks the majority and attempts to delegitimize its decisions. Geyh sees Scalia as stepping far outside his judicial role and joining Congressional critics of the Court in denouncing decisions -- and Justices -- he does not agree with.

Taken together, Dorf and Geyh suggest that Scalia's lapses in judicial decorum could lead to erosion in respect for the Court itself -- a possibility New York Times columnist Adam Cohen also wrote about last week. As Dorf notes, though many Americans disagree with certain decisions, few are yet cynical enough to decry the Court itself. But that may change if Scalia continues to berate his colleagues in public and, worse, if some others on the bench adopt his sarcastic attitude. And we might not have to wait too long. In a recent case, Chief Justice John Roberts, writing for the dissenting minority, took some Scalia-like shots at Justice Stephen Breyer.

No Litmus Test and When Courts & Congress Collide: Shared Themes, Different Focus

No Litmus Test and When Courts & Congress Collide complement each other. Geyh provides a broader and more historically-oriented context, while Dorf gets into the specifics of current cases and political events. In the end, though, it's Dorf's insight into particular cases that I believe will prove most helpful for people trying to decipher the difference -- slim though it may be -- between law and politics today.

In "judging" case decisions in his articles, Dorf tries to set aside his personal opinion of the outcome and ask: Does the judicial opinion represent good decision-making? How did the judges deal with precedent? How logical were their conclusions? Does the outcome make sense in the context of everyday life? Or it the outcome merely an instance of blatant partisan politics -- what Geyh describes as "a shill to conceal nakedly political decision making" that should be reserved to the people and the Congress?

Most of his articles are models of this smart, clear, and sensible approach. Two that are a particular pleasure to read are those dealing with Bush v. Gore (a riveting decision with a logic that seems to come out of the blue) and with the Terri Schiavo law and its judicial aftermath (Dorf suggests that if the legal case had initially been framed better, the results might have been quite different).

The shrill partisan politics that pervade the halls of Congress and the courts could be silenced -- or quieted somewhat -- if judges and legislators would commit themselves to the clear thinking and good judgment that Dorf espouses and models. Geyh is persuasive when he argues that we are at a crossroads: Judges need to stick to the law, lawmakers to politics and legislating. Only then can that delicate equilibrium which is at the heart of preserving our liberty be maintained. Let's hope that clearer heads -- and clearer arguments -- prevail.


Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. Her textbook, Criminal Behavior (2nd ed., in press, Erlbaum), explores crime and violence from a developmental perspective. Her book, The War on Civil Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, was published by Lawrence Hill in 2004. Her website, Civil Liberties Watch, is published under the auspices of Minneapolis, Minnesota's City Pages.

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