Former Supreme Court Justice John Paul Stevens recently wrote a column for The Washington Post. Its title: "Five extra words that can fix the Second Amendment."
Justice
Stevens retired in 2010, and was regarded as one of the "liberal"
members of the Court. Stevens was one of the longest serving Justices in
history—he was nominated by Gerald Ford. Because he served under Chief Justices
Burger, Rehnquist, and Roberts, he had unique insight on the evolution of the
Court in the past few decades.
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| Justice Stevens (Photo: Steve Petteway) |
A fascinating piece of that insight was shared in this
article. In it, Stevens shares his perception of how judicial interpretation of
the Second Amendment has changed over time.
I'll try my best to summarize his story with a few quotes:
"When
I joined the court in 1975, that holding was generally understood as limiting
the scope of the Second Amendment to uses of arms that were related to military
activities. During the years when Warren Burger was chief justice, from 1969 to
1986, no judge or justice expressed any doubt about the limited coverage of the
amendment, and I cannot recall any judge suggesting that the amendment might
place any limit on state authority to do anything."
"Organizations
such as the NRA disagreed with that position and mounted a vigorous
campaign claiming that federal regulation of the use of firearms severely
curtailed Americans’ Second Amendment rights. Five years after his retirement,
during a 1991 appearance on 'The MacNeil/Lehrer NewsHour,' Burger himself
remarked that the Second Amendment 'has been the subject of one of the greatest
pieces of fraud, I repeat the word ‘fraud,’ on the American public by special
interest groups that I have ever seen in my lifetime.'"
It's
worth reading the rest of Steven's column. He makes so really insightful
arguments about the precedent that currently exists, and what can be done. He
even goes so far as to propose a re-write to the Second Amendment: A
well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms when serving in the Militia shall
not be infringed. (The italicized words are those that have been added).
While
I welcome input about the Second Amendment, and
Judicial Interpretation thereof, there's a different conversation I
want to have. It's implied by the quotes I included: Do Interest
Groups have the ability to influence judicial opinion? In other words,
do you think the campaign the NRA carried out influenced
the decisions of Heller and McDonald (the two cases that
greatly expanded gun-owner rights)?
Answering this
question raises another one: Where does the Supreme Court fall
under pluralist, elitist, and bureaucratic theory? Ostensibly,
nine men and women represent and elitist group who can make
policy decisions. But the Court cannot enforce its decisions-- so is it an
elite organization? Or could it be pluralist?
Ponder
this question: how much can the Court be swayed by public opinion?
(And how much should it be swayed?)
Remember
that the Court's entire power rests of its legitimacy:
does succumbing to public opinion enhance or damage that legitimacy?
5 comments:
Interesting post, Jack. There is a major divide (or several divides) in the Supreme Court over its role in determining policy. It is simultaneously argued that the Supreme Court should protect the minority and that the Court (since it is not democratically elected and therefore does not represent the majority) should not overreach its boundaries. There is also debate over whether the Supreme Court should follow the "original intent" of the Constitution: what the writers and/or ratifiers originally intended the Constitution should do. The original intent of the Constitution was hardly to support modern assault weapons. Or it could be argued that the Constitution, and its meanings, must change over time. This changing over time would have some relationship to public opinion.
I think that Interest Groups do influence Supreme Court opinion, especially through means like amicus briefs. However, I don't think that the Court should become so subservient to the public that it becomes just an agent of the majority.
There's no question that special interest groups have had an influence on Supreme Court decisions in the past and present. Through amicus briefs , directly representing trial parties and introducing cases to the cert pool, special interest groups and really just different groups in general can and do advocate for changes in case law. The three theories we discussed in class are rarely strictly applied, and more often than not a combination of these influences are in play at any given moment. While technically the Supreme Court is an elite organization, it not only does not have enforcement power as affirmed in class, but the selection process for justices, cert pool system, public and governmental opinion all play significant roles in determine Supreme Court opinions and decisions. And all these influences, nearly impossible to qualify already, change all the time with the opinions of the public, government, and court justices themselves who may or may not subscribe to populist, delegate, trustee, and other representative theories.
The disposition of the Supreme Court to be swayed by public opinion and special interest groups varies from case to case, and I'd wager that those who would argue a generalization for these influences on the Supreme Court often base their opinion through the lens of several specific cases recent or not. Whether or not the Supreme Court should be swayed is a question of ideology and political values, and I am of the opinion that the Supreme Court's flexibility in considering a variety of factors with different weights is a decent way to effect positive change in the US government.
In response to your last question, Jack, I feel that the Court's legitimacy mainly depends upon the executive branch's willingness to enforce its decisions. The Court could issue all the decisions it pleases, but without the executive to make sure that these decisions get translated into real policy changes, they would be meaningless. Although public perceptions of the Court will undoubtedly color its legitimacy somewhat, the Court has had to make unpopular decisions in the past, and it retained most if not all of its legitimacy because the executive branch was willing to enforce those decisions.
Additionally, the Court's legitimacy also lies with the fact that it is the nonpartisan guardian of the Constitution. When the Court issues decisions with sound reasoning and strong linkages to the actual text of the Constitution, no one can question the legitimacy of the Court because to do so would also be in a sense to question the legitimacy of the Constitution upon which it based its decision. However, when the Court strays from its nonpartisan stance, when decisions get too stretchy or appear too political, the Court suffers some damage to its reputation and its legitimacy because people now start to question whether the decision was neutrally based on the text of the law or based on political motives and then loosely justified using the law.
Great Post Jack!
I think that this 'amendment' to the 2nd amendment is extremely interesting.
I think that interest groups do have influence on the courts because they are aware of what the interest groups do. I don't think it has to be directly influenced, but over time, a justice may have their views altered. When more people have the opinions that the interest groups are pushing, it is more than likely that justices will have that view too.
For the next set of question, I believe that the Court falls under the Elitist category even if they can't enforce their decisions.
I believe that the Courts should be influenced by public opinion to a degree so that the decisions somewhat follow what people want, but they shouldn't if it directly goes against the constitution.
Finally, I think that the Court remains legitimate whether it succumbs to public opinion or not.
I agree with Patrick in that the Supreme Court stands as a nonpartisan force in our government system. However, it is important to remember that the justices that make up the Supreme Court are people; they were not born to be impartial interpreters of the Constitution. Their opinions and biases are subject to the influences of their upbringings, past careers, peers (including interest groups), etc. I'm not saying that the Supreme Court ought to be openly influenced by the will of the majority by any means. I just think that it is worthwhile to keep in mind that even when justices attempt to give a nonpartisan perspective on the Constitution, their opinions are inadvertently colored by their own histories and experiences with the law.
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