WAPO ON CONGRESSIONAL ATTACKS

WaPo editorializes on Hostettler's court-curbing appropriations amendment and Delay's "House Working Group on Judicial Accountability," here. The main point:

If the lower courts have mistakenly interpreted the Constitution, it is the Supreme Court's job to set them straight. But as long as their decisions stand, they are law and are entitled to respect from all Americans -- especially members of Congress. For Congress to use its purse power to defund decisions of which members don't approve sends a message of contempt for the judicial system.

WaPo also attacks Delay's Working Group as an "abuse" of Congressional power. For another attack on the Working Group, see the opinion piece titled "The Constitution Police" in the Dallas Forth-Worth Star Telegram.

Congress takes these kinds of symbolic jabs at the Court all the time; they serve to satisfy constituent complaints about the courts, whip up party faithful (with respect to long-standing party principles that should surprise no one by now), and signal to the courts that they are getting out of touch with public opinion. And, perhaps most interestingly, they often proceed from a belief that Congress can interpret the Constitution in ways that the courts have rejected. When defended as a theory of constitutional interpretation, this view goes by the name "departmentalism," and as far as I can see, even though it's not the dominant view in the legal culture, it still has some support as an historical and theoretical matter. I actually think that a departmentalist view should be defended, partly because I think that it helps to explain the actual behavior of Congress and the President in their conflicts with courts over constitutional issues. So I can't really support the shocked attacks on Congress by the WaPo editorial staff.

For my comment on Hostettler's moves, see here and here, and for my post on Delay's Working Group, see here. I do like to attack Delay, and my post on the Working Group is titled Now Who's 'Changing the Constitution'? This might seem like a contradiction: on the one hand, I'm criticizing Congressional Republicans for their interpretation of the House's role in judicial confirmations, and on the other hand I'm saying that Congress has the power to interpret the Constitution even when that interpretation is counter to judicially promulgated interpretations. But precisely if Congress is going to have the power to engage in interpretation, we should scrutinize what members of Congress do when they do in fact interpret. In the case of the Working Group, Republicans have asserted a role for the House that goes far beyond what a narrow reading of Article II seems to allow. I'm not concerned about that, but it does seem inconsistent with a professed textualism that has popped up on occasion in the debate over the filibuster, for example. I don't have a watertight case, to be sure, but there is an air of hypocrisy here.

Ultimately, I wish the House Republicans good luck. After all, "what goes around, comes around," and I certainly hope to be around in 30 years to attack the excesses of a federal judicial system entrenched with Republican appointees who will have gotten old and crotchety and who will have been overtaken by shifts in the political culture. If in 30 years, Representative Chelsea Clinton wants to set up a House Working Group on Judicial Conservatism, at least I'll know where to send my political contributions. In fact, why should House Dems wait for 30 years? They can probably find enough material right now. . .