States Consider Legislation to Override Court Rulings
What about separation of powers?
The governments in Florida, Washington, and Alabama have begun to consider passing legislation that will allow it to overrule “certain state court decisions.” However, some have concerns over this due to separation of powers.
Florida GOP Rep. Julio Gonzalez filed two bills that gives the Florida government or the U.S. Congress the ability “to override or nullify court decisions.” House Joint Resolution 121 will add an amendment that allows lawmakers to take that step “by a two-thirds vote of each chamber for up to five years after a decision at any level – county, circuit, appeal or supreme court.” His House Memorial 125 aims at “Congress to propose a similar amendment, but to the U.S. Constitution, granting Congress the power to nullify federal court decisions.”
The Washington bill will also allow its legislators “to vote to ‘reject the determination of the court,'” if a court rules an act unconstitutional.
In Alabama, two legislators have proposed legislation that will not allow a judge to impose the death penalty if the jury recommends life imprisonment.
From The Wall Street Journal:
One of the Washington bill’s sponsors, Republican Rep. John Koster, said he had been motivated by a tort case on education funding that he believed prompted the court to overstep its authority.
Mr. Koster conceded that the bill’s chances of passing were uncertain. “But it’s a worthy effort to tap [judges] on the shoulder and remind them of separation of powers.”
Gonzalez said he wants to stop judicial overreach:
“Indeed, we have seen these encroachments play out on countless occasions,” he wrote, explaining his decision to file the bills. “Supreme Court rulings have mandated that religious symbols be taken down from public places or be replaced with others. They have placed prohibitions on prayer in public schools, commencement ceremonies, and athletic events. Negations of laws prohibiting the desecration of the American flag have made the unconscionable legally acceptable, and judicial prohibitions on federal term limits have overturned the will of the people of a state, even if that will is enshrined in the affected state’s constitution. And recurrently, the distributions of votes in these opinions largely mirror the party affiliations of its members.”
He continued: “It is my concerted view that such provisions, if enacted by the people would curtail the tendency of activist judges to manipulate the law to suit their political views and agendas. Equally as importantly, this would force the people to engage the legislature in enacting rectifications to current laws that they see as objectionable or flawed, restoring the natural relationship between the people and their legislative bodies. This would also force the electorate to more carefully look at their candidates and their actions during times of reelection.”
Randolph Mclaughlin, professor at Pace Law School, said that separation of powers is the “bedrock principle of American democracy” (For the record, America is a REPUBLIC). He also said in this form of government the court determines what is constitutional. But Gonzalez said there should be a check on the courts since it doesn’t exist.
This is not the first time a state has attempted to overrule the courts. The Kansas Senate passed a bill in 2016 that “allowed the impeachment of state Supreme Court justices for discourteous conduct of for ‘attempting to usurp’ legislative power.” The bill never made it out of the House. New Jersey has proposed similar legislation, but never got anywhere.
Alabama’s legislation only aims at the death penalty. In this case, a Republican and Democrat joined forces:
Sen. Dick Brewbaker, R-Montgomery, has filed a bill that “would prohibit a court from overriding a verdict by a jury in a capital case,” while Representative Terry England, D-Tuscaloosa, filed House Bill 32 to “require a verdict of death to be based on a unanimous vote of the jury and would prohibit a court from overriding a verdict by a jury in a capital case.”
Last year, Jefferson County Circuit Court Judge Tracie Todd ruled it unconstitutional for the state “to allow judicial override.”. She even noted that in the county, more judicial overrides occur on death penalty cases “when judges are running for office.” Randall Marshall, the acting executive director of the American Civil Liberties Union of Alabama, said this causes a judge’s “decisions on such cases” to become politicized. From Weld for Birmingham:
She noted that Alabama judges have overridden jury sentences of life to impose the death penalty 97 times since 1976, the year the U.S. Supreme Court reinstated capital punishment. In June, the Alabama Court of Criminal Appeals ordered Todd to vacate her ruling, upholding judicial override in death penalty cases.
In her order, Todd also found that “Jefferson County leads the state in total death sentences resulting from judicial overrides,” with 17 such sentences between 1976 and 2011. A report released in October by Harvard Law School’s Fair Punishment Project made similar criticisms of how capital cases are resolved in Jefferson County. The project found that since 2006, Jefferson County trial judges overruled jury recommendations of life imprisonment and imposed capital punishment in 44 percent of capital case verdicts.
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I think the better course of action would be for the US Supreme Court to reconsider the meaning and scope of the 10th Amendment. To do that, they have to get a proper vehicle (case) come before them. This does not sound like the best approach.
Do not understand why this controversial. Legislatures always legislate to overrule nonconstitutional decisions. The notion, too, that separation of powers leaves decisions on constitutionalality to the courts alone is a foolish overreading of Madison v Marbury. We ask all public officers to take an oath to defend the respective state and federal constitutions. This surely means that it is not the province of courts only to decide constitutional questions.
You don’t see why it’s controversial?! When have legislatures ever been allowed to decide legal cases? This bill would smash the separation of powers in Florida. Which doesn’t necessarily mean it’s wrong; the separation of powers is a function of the state constitution, and they have the right to amend that. It’s possible that the separation of powers is part of the definition of a republican form of government, but the supreme court ruled in the 1850s that that’s not justiciable, so it would be up to the president and congress to decide whether to allow it. If it’s OK with them then the Floridians get to do this.
“What about separation of powers?”
The question itself is revealing. It isn’t a matter of separation of powers, but one of challenging the supremacy of the judiciary over the other branches.
Every law or regulation from the legislature or executive, respectively, is subject to interpretation by the courts. This is as intended, and sometimes because of laziness on the part of the other branches. Sometimes because of corruption of our system by tyrannical judges. Sometimes just because…
But revisiting a law NEVER implicates a question of separation of powers. I can’t think of a circumstance where that is a bad idea, and have long militated for sun-setting for that very reason.
Revisiting a law never implicates a question of separation of powers, but a legislature reviewing a past decision certainly does. The whole point of the separation of powers is that legislatures make general laws that affect everyone equally, while courts resolve specific disputes that are brought before them. This bill turns the legislature into the ultimate court of appeals, as the House of Lords used to be, but more cumbersome because you’d need a 2/3 vote in both houses, so either both houses would have to hear the appeal, or you’d end up as the UK did with specialist Law Lords whose recommendations the legislature would rubber stamp. Either way, it’s a major change in our system of government.
Now if you were to limit it to a power to affirm the constitutionality of a law in the face of a court opinion to the contrary, we have something to talk about.
I find that in this issue, I agree with you completely, Rags. When a legislature reviews and revises a law, then the previous judicial decision becomes moot – not automatically, of course, but it makes the previous case instantly subject to appeal, on the grounds that the case was improperly decided due to an incorrect application of law.
Probably the most famous case of this happening in American History was when the 13th amendment was passed partially to negate the Dred Scott decision, and of course primarily to officially end slavery.
As I recall, this was in Mark Levin’s book, “the Liberty Amendments” and is way overdue. We have turned in a judicial oligarchy. Why do you think we have illegal alien children in our public schools? Doe v. Plyler, U.S,S.C. 1982, that’s why. Why is California overrun with illegal aliens? Because the citizenry passed an initiative in the 90s to deny public benefits to illegal aliens and the Cal. S.C. nullified it!!!! The Cal. Su.C. should be nullified, arrogant asses.
They have changed the character and make-up of our country, without anyone voting for it, and contrary to Americans’ direct expressed wishes. This is tyranny, plain and simple and I will never forgive them for making me a foreigner in my own land.
They are CONSTANTLY overstepping their bounds. The only separation of power they believe in, is where they always get the final say. Arrogance unbound. I despise the appellate courts. DESPISE them.
And I say this as someone who had appellate successes early in my career….
Sounds like those two breeds of chicken, the Emanations and the Penumbras, may soon be coming home to roost.
Indeed, it is time to get rid of Marbury v. Madison. It was an invention [by Marshall] just as was Roe v Wade, and many other Supreme Court decisions.
This sounds like heresy, because ever since the Marshall decision, judicial review has been taken as a given, but it may be time to overturn it.
Marbury is VERY different than Roe.
And, while I agree it may be past time to mitigate Marbury, it is not time to completely do away with judicial review.
If you think about it, we can’t do away with judicial review. Laws have to be rationally dealt with by the courts, and ADDITIONALLY there has to be a Constitutional review of laws, else there is no effective limit on what the majority passes.
I consider them the same in that they were both created out of thin air. Based on philosophical considerations perhaps, but as far as the Constitution, out of thin air.
While the Framers had LEFT a lot of open ground (you can call it “thin air”) that needed some filling in, Marshall was a contemporary of theirs.
If Marbury was an outrage to the intent of the framers, they were right there to do something about it. History tells us that judicial review had appeared both before and after the Constitution. It was even a bone of contention between the factions WRT the ratification.
To Great Unknown:
Thomas Jefferson agreed with you wholeheartedly.
There’s no need to overturn Marbury v. Madison.
“Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago — 1803, if the storyteller is trying to be precise — in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of “judicial review.” Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional.”
As the author goes on to demonstrate, as many others have, this is a myth precisely because nothing in the text of Chief Justice John Marshall’s opinion supports any of it. First of all judicial review was an established legal principle. Hamilton, writing as Publius in Federalist No. 78, discusses it in detail and note that judicial review does not mean judicial supremacy.
“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both…”
Marshall says exactly the same thing in his decision. The Supreme Court is created by the Constitution, not by Congress. Marshall placed a great deal of importance on oaths. Supreme Court justices take an oath to defend the Constitution. It would be a crime, he said, to require them to take that oath and then require them to break it should the legislature decide to extend its authority beyond what the Constitution expressly provides it.
But then, all this applies to the other two separate, co-equal branches of government. Just as he said justices have the right to direct, unmediated recourse to the plain text of the Constitution so do the members of the legislature and the President. And since neither of these branches are creations of the judiciary
… they have a separate, co-equal right to determine the constitutionality of the decisions of the judiciary.
Let’s revisit Federalist no. 78 again:
“If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution.”
Substitute the words “courts” for “legislative body” and you will have precisely the view expressed by Marshall in Marbury v. Madison. He in fact said that the Constitution governed the courts as well as the legislative. He said he was just as much restricted by the Constitution as the legislature. He never said he had the right to exercise free wheeling discretion.
The problem is, as Prof. Paulson points out in his excellent Northwestern Law Review article, is that people have been conditioned to read Marbury v. Madison via a 21st century prism. And that prism birthed by a 1958 court case, Cooper v. Aaron.
“Held: The judgment of the Court of Appeals is affirmed, and the orders of the District Court enforcing petitioners’ plan of desegregation are reinstated, effective immediately. Pp. 358 U. S. 4-20.
8. The interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” P. 358 U. S. 18.
Page 358 U. S. 18
Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 5 U. S. 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land…”
Marshall never said any such thing as vile and as contrary to the founding principles of this country “the federal judiciary is supreme in the exposition of the law of the Constitution.” As Rags observes, “If Marbury was an outrage to the intent of the framers, they were right there to do something about it.” Marshall simply restated what Hamilton had said in Federalist no. 78:
“Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both…
Marshall never came close to saying that judicial power was superior to the legislative power the founders would have found that outrageous and they would have done something about it. But then would have found that outrageous, which is why, if you let the decision speak for itself, he never says that he and he alone gets to be the judge of his own constitutional authority.
Marshall, the framers, indeed Presidents at least through Lincoln, held what was known as the Department theory. That each department (each separate, co-equal branch) had equal power to interpret the Constitution. This was expressed by Jackson when he vetoed the bill renewing the charter of the Second Bank of the United States on constitutional grounds, despite the fact that Marshall’s Court had upheld it in 1819.
Lincoln gave similar expression to the department theory when he told the SCOTUS that their decision in the Dred Scott case was not the final say on the subject in his first inaugural address.
“The candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.”
And both the Lincoln administration proceeded to send a clear signal to the court that their decision was unconstitutional by simply ignoring it. In the SCOTUS decision the court ruled that blacks, whether at that time enslaved or free, could not be citizens of the United States if their ancestors had been imported as slaves. Lincoln’s State Department issued passports to blacks whose ancestors had been imported as slaves, and passports were limited to citizens. The court ruled that the federal government had no power to regulate slavery in federal territories acquired after the creation of the United States. Congress abolished slavery, in exactly those territories the SCOTUS told them they couldn’t regulate in the Scott decision, in 1862.
These laws the states in question are contemplating, pace Milhouse, are not a threat to the separation of powers. They are the restoration of powers. No matter where you stand on the issue, think back to the arrogance of the Mass. Supreme Court declaring a right for same-sex couples to marry, and then ordering, ORDERING, the legislature to pass a law legalizing it within a certain time frame.
Frankly, I don’t think a law is necessary to do reestablish the separation of powers, and the principle that the three branches of government are co-equal. Whether at the state level or the federal level when courts exceed their authority the other branches should just give them the finger and ignore their rulings, as the Congress and Lincoln did the Taney court. And when that happens the courts get the message. They can’t do anything about it.
These laws the states in question are contemplating, pace Milhouse, are not a threat to the separation of powers. They are the restoration of powers.
Really? When did any legislature in this country ever have the power to exercise the judicial function by overturning a court’s decision? I agree with about 95% of your long two-part comment, and think you expressed it very well, but none of it is relevant to a proposal that would turn the legislature into a court of last resort, with the power to review and overturn any court decision. In the UK the House of Lords had this power until a few years ago, but our founders chose not to give it to the senate. And in the UK itself the power was in practice taken away from the House of Lords in 1876 and given to the Law Lords, who functioned effectively as a normal court; the House of Lords would merely rubber-stamp their decisions.
Even if you merely want to allow the legislature to affirm the constitutionality of a law over the judiciary’s heads, this would go contrary to what you cited from Hamilton. You would make the legislature supreme over the judiciary, by binding the judiciary to accept such a determination by the legislature and accept as valid a law it believes not to be. “It would be a crime, he said, to require them to take that oath and then require them to break it should the legislature decide to extend its authority beyond what the Constitution expressly provides it.” But at least such a scheme would not overturn the separation of powers; the one proposed in Florida would completely destroy it.
Sorry for a slight error. Prof. Paulsen wrote his article for North Western Law school’s Constitutional Theory Colloquium Series, not their law review.
Trouble is, how do you separate court decisions based on logical conclusions and reasonable interpretations of what the Constitutiion actually says, and decisions that arbitrarily reach a result that the advances the judges’ personal political opinions? For me, it’s easy. So put me in charge of this and all will be fine.
The best example is how progressive fascists can pervert the 2nd amendment so that there is no right to keep and bear arms. If Crooked Hillary or Tyrant Obama the Liar has been able to install another progressive fascist Supreme Court judge there would be no right to keep and bear arms.
I can agree with the Alabama action. Society, in the form of the jury, has made it’s decision. The judge has no business overriding that decision.
To Rusty Bill:
I would say there’s inadequate information to make that determination. The application of evidence law in jury trials can bar much too information from the jury, to which the judge may be privy. So, on that basis alone, a judge’s sentence may be more appropriate than the jury’s. Other factors can contribute to this as well, so I’m not prepared, reflexively, to agree.
The death penalty has been rendered so difficult to impose – unless federal officials are the victims – that’s it’s really a punishment for the taxpayer now.
“I would say there’s inadequate information to make that determination. The application of evidence law in jury trials can bar much too information from the jury, to which the judge may be privy. So, on that basis alone, a judge’s sentence may be more appropriate than the jury’s. Other factors can contribute to this as well, so I’m not prepared, reflexively, to agree.”
if that is the case how can the jury decision to convict/acquit be valid in the first place.
At this point, GOP control of 33 state legislatures opens the possibility of calling a convention of the states to introduce a amendment to the US Constitution to that effect. Even some Democrat-run states might want to establish some recourse against SCOTUS rulings that can be expensive or difficult for the states.
Obama’s first term with a Democrat legislature would have been much worse had this proposed legislation been in effect at the federal level.
Impeaching justices would be much preferred.
The Kansas Senate passed a bill in 2016 that “allowed the impeachment of state Supreme Court justices for discourteous conduct of for ‘attempting to usurp’ legislative power.”
As much as I disagree with the attempt, I fully understand *why* it was made. In short, the Kansas Supreme Court has become quite liberal over the last decade, in particular with school funding. Since the appointment process for State SC nominees is roughly “The state bar sends a list of names to the Gov, and he/she picks one” and since the state bar went left, their picks did too.
(Opinion follows) Sebelius used the KSSC as a club to extract more money for school unions out of the Republican House/Senate. The House and Senate would work out a compromise, send it to her, she’d sign it ‘under protest’… and lo and behold, the SC would come out right after the House/Senate would take a break and declare the budget unconstitutional right when all the Senators/Representatives were at home where they could be cornered by constituents. Sebelius would sigh and say there was nothing that could be done except to raise taxes and send more money to the schools, the Dems in the House and Senate would sing the second verse, and the Republicans would have to do the hard work of trying to do actual budgeting.
When Brownback took office, the KSSC got *nasty* with their timing. The last standoff they practically came out and demanded a half-billion dollars for schools or else.