Supreme Court Should Be 'Reined In' To Return Power To Legislative Branch, NYT Columnist Writes

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Article Date: 04 Jun 2009 - 1:00 PDT

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Although Supreme Court nominee Sonia Sotomayor's confirmation hearings are more than a month away, "it's easy to predict how they will go," New York Times columnist Ross Douthat writes. Douthat predicts that Senate Judiciary Committee members "will attempt to divine Sotomayor's position on a variety of controversial topics," such as abortion rights, and in "a series of polite, evasive answers, the nominee will feign a studious neutrality on almost every issue that could come before her during what's likely to be decades as one of the most powerful women in the world." According to Douthat, the "deeper stakes" that likely will be ignored are that "Sotomayor will be joining a high court that's gradually become a kind of extra legislative body." He cites research from Harvard Law School professor Jed Shugerman showing that the court over roughly the past 50 years has invalidated both state and federal statutes at an unprecedented rate. Douthat also points to data from Evan Caminker of the University of Michigan showing that in one eight-year period, the court invalidated 16 federal laws in 5-4 votes, something that occurred only 25 times in the previous two centuries. Douthat writes that "settling so many vexing controversies with 5-to-4 votes -- effectively making Anthony Kennedy the nation's philosopher king -- is an awfully poor way to run a republic."

Douthat continues that the "modern court's most enduringly controversial power grabs -- with Roe v. Wade leading the way -- were usually the work of liberal justices" but that "in practice, the main divide between liberal and conservative judges tends to be over the responsibilities of the federal government, not judicial activism per se." He writes, "There are bipartisan ways that the Court could be reined in, and the legislative branch reinvigorated," including the idea of a supermajority rule that would require a 6-3 vote to overturn federal legislation. This idea "might spur the court toward greater consensus, and perhaps greater modesty as well," according to Douthat. Another possibility would be to implement 12-year term limits, he says. Douthat concludes that these suggestions would not "reduce the Supreme Court's power directly, but it would help us see the court for what it has become -- a deeply political institution, as fallible as any other, and answerable, when all is said and done, to us" (Douthat, New York Times, 6/2).

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