Tuesday, July 12, 2005

Mark Levin's Men in Black

Read Men in Black: How the Supreme Court is Destroying America today. Again, as with most polemical books, it's best to read it quickly. Unlike many of these instant bestsellers, Men in Black is informed by a passion for historical detail and context. While to some extent it's a laundry list of grievances for strict constructionist critics of the court (grievances I generally share), what leavens the reading and makes it enjoyable are thumbnail bios of select Justices through history and the historical incidents that shaped the court, such as FDR's controversial attempt to pack the court in the 30's, and the impeachment of Justice Samuel Chase in 1804.

A couple of nits: Levin dedicates a chapter to Marbury v. Madison, the landmark case that established the principle of judicial review early in the history of our country. This leaves the reader wondering whether Marbury itself is an example of judicial overreach -- a finding that Levin implies but doesn't state. While the idea that judicial activism became something that was destined to grow after Marbury has much to commend it, Levin should have pointed out that for a long time after Marbury, judicial review was quite limited. As Professor Robert Lowry Clinton has pointed out in First Things:

A limited form of judicial review was already established by 1800, but only for relatively "clear cases." Marbury did not alter this, but rather established a clear precedent for the Court’s power to disregard congressional laws in cases "of a judiciary nature"—cases in which judicial functions were threatened by application of a questionable statutory provision. Marbury established only that the judiciary would play an important role in constitutional interpretation, not that it would play the ultimate role.

This is vital for fully understanding Levin's criticism of President George W. Bush's failure to veto the McCain-Feingold law, a law which the President claimed was unconstitutional at least in part, but about which he decided to defer to the Supreme Court. Levin and Professor Clinton both see this as a dereliction of duty, brought on by a pattern of acquiescence to judicial usurpation by both the legislative and executive branches of government.

It's also not clear that Plessy v. Ferguson's infamous holding supporting "separate but equal" accommodations for whites and blacks result from judicial activism. It's an intriguing idea, but Levin doesn't really flesh out his argument. We really need to read the Fourteenth Amendment more closely and examine the arguments (revisiting Justice Harlan's dissent would also help).

Maybe I'm expecting too much from Levin here -- for a general audience, it may not be appropriate to get bogged down in hermeneutics. But even in the best of worlds, the Supreme Court does need to do hermeneutics, even if it does it well, that is, strictly and faithfully.

All that said, there is a lot to be learned from this, and I'm thankful to Levin for having written it.
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