ConfirmThem

By AndrewHyman Posted in Analysis and Predictions — Comments () / Email this page » / Leave a comment »

Although this site features a lot of gossip and humor, we're also concerned about serious legal issues involved in the confirmation process. From a legal perspective, it will be especially interesting (at least for me) to see whether four things happen during the Roberts hearings.

First, Roberts will undoubtedly be asked whether or not he discerns any "unenumerated rights" that are protected by the Constitution. I hope he says "yes." Here's what James Madison said when he introduced the Bill of Rights in Congress on June 8, 1789:

It has been said that in the federal government [a Bill of Rights is] unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government. I admit that these arguments are not entirely without foundation....

Clearly, if the federal government has not been granted power to prohibit some individual behavior, then that individual behavior may be considered an individual unenumerated right that can be enforced in court against the federal government. Although the feds have been delegated vast power to make laws governing Washington D.C., federal power is much more limited outside of Washington D.C., and so in the various states there are many unenumerated rights that are enforceable against the federal government. However, it cannot be emphasized enough that those unenumerated rights are not enforceable against the states, because those unenumerated rights cannot be considered "privileges or immunities of a citizen of the United States" (i.e. citizens in Washington D.C. do not enjoy those rights vis a vis the federal government).

The second thing that I'll be especially interested to see in the Roberts hearings is whether there is any overlap between Senators' irateness about the frequency of judicial review, and Senators' concerns about jurisdiction stripping (also known as "court stripping"). Senator Specter, for example, is upset that SCOTUS has enforced limits on the scope of the commerce clause, and Senators may ask whether Roberts believes Congress is free to remove such matters from the jurisdiction of SCOTUS or (more controversially) from the jurisdiction of the federal courts altogether.

Personally, I prefer the alternative solution discussed by Jed Shugerman recently in his article "A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court," 37 Georgia Law Review 893 (2003). Shugerman pointed out what has been pointed out many times before: Congress is free to give the Chief Justice and one or two other associate justices a collective veto whenever the Court would otherwise hold a state or federal statute in conflict with some particular aspect of the Constitution. I have never heard any reason why such a veto would be unconstitutional, and it would go a long way toward restoring democracy in the United States.

A third topic that I would really like to see discussed at the Roberts hearing is the treaty power, although I am not hopeful that it will be mentioned. Senators should defend their constitutional power to approve or reject treaties. It seems like we're on a path to where a President can always avoid the two-thirds vote required in Article II, Section 2, Clause 2 of the Constitution, merely by calling an international deal an "agreement" instead of a "treaty." This often happens with commercial treaties, but the language of the Constitution is clear, and the intent of the framers is also clear; as Roger Sherman publicly explained prior to ratification, "It is provided by the Constitution that no commercial treaty shall be made by the President without the consent of two-thirds of the Senators present." A majority of the Supreme Court, including Joseph Story, explained in 1840 that "agreements" have a short duration whereas "treaties" need not have a short duration.

If an international deal says that the U.S. can get out of its commercial obligations whenever we want, on six months' notice without any penalty, then the deal is not necessarily a treaty, but if we're stuck with the deal for thirty years then it most certainly is a treaty. Where would Roberts draw the line, and does he even believe that such a line exists for commercial treaties? I hope Senators express concern that the courts seem to be on the verge of letting the President get away with calling any deal an "agreement" instead of a "treaty," in order to circument Article II, Section 2, Clause 2, if the deal has the slightest relation to commerce. Roberts himself knows a great deal about this subject, having helped Chief Justice Rehnquist draft the Court's opinion in Dames and Moore v. Regan.

Of course, the fourth topic that I'll be listening for during the Roberts hearings is what he says (if anything) about abortion. I've said my share on that topic.