Vol. 126 No. 1 Sometimes the Justices seem barely able to hide their disdain for the other branches of government. Take the oral argument three Terms ago in Northwest Austin Municipal Utility District No. One v. Holder. Justice Scalia pointed to the overwhelming congressional vote in favor of amending and extending section 5 of the Voting Rights Act of 1965 – the “crown jewel” of the Second Reconstruction – as a reason not for deference, but for suspicion:
JUSTICE SCALIA: . . . What was the vote on this 2006 extension – 98 to nothing in the Senate, and what was it in the House? Was –
MR. ADEGBILE: It was – it was 33 to 390, I believe.
JUSTICE SCALIA: 33 to 390. You know, the – the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.
In this Term’s argument in Arizona v. United States, an important immigration case, Chief Justice Roberts cut off Solicitor General Donald B. Verrilli Jr. before Verrilli was able to utter a complete sentence. And during argument in National Federation of Independent Business v. Sebelius (NFIB), Justice Kennedy speculated that when the political branches take a step beyond what the Court’s existing cases “have allowed,” the presumption of constitutionality disappears, to be replaced by “a heavy burden of justification to show authorization under the Constitution.” The Justices are becoming umpires in the tradition of Bill Klem, who when asked whether a particular pitch was a ball or a strike, replied that “It ain’t nothin’ till I call it.”
Vol. 126 No. 1 The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution . . . .
– Joseph Story (1833) That the Court was sharply divided was not a surprise. The contrasting briefs – including a record 136 from amici – laid out the dispute. Over the extraordinary six hours of oral argument, the Justices actively interrupted the advocates, with Justices Ginsburg, Breyer, Sotomayor, and Kagan directing considerably more words to the challengers, and Chief Justice Roberts and Justices Scalia, Kennedy, and Alito the mirror image, directing far more of their words to the government. So it was not a surprise to find that the Justices produced two starkly warring opinions. One would strike down as unconstitutional the entire Patient Protection and Affordable Care Act, and another would entirely uphold the same law; the two opinions embodied distinctive approaches to the issues at hand, to constitutional interpretation, and indeed, to how to view the world.
Vol. 124 No. 8 The Supreme Court applies the structural provisions of the Constitution by relying on an overarching framework of “separation of powers.” Its cases reflect two distinct visions of the doctrine. Functionalist decisions presuppose that Congress has plenary authority to compose the government under the Necessary and Proper Clause, subject only to the requirement that a particular governmental scheme maintain a proper overall balance of power. Formalist opinions, in contrast, assume that the constitutional structure adopts a norm of strict separation which may sharply limit presumptive congressional power to structure the government. This Article contends that, to the extent that these theories each rely on a freestanding separation of powers principle derived from the structure of the document as a whole, both contradict the idea that the Constitution is a “bundle of compromises” that interpreters must respect if they are to show fidelity to the constitutionmaking process.
D.C. Circuit Holds that Government Officials' Potentially Defamatory Allegations Regarding Plaintiffs' Terrorist Ties Are Protected by Political Question Doctrine.
