Can the President Persuade The Supreme Court to Support His Policy Positions - Case Study Example

Can the President Persuade The Supreme Court to Support His Policy Positions? The US President & the Supreme Court: An Introduction A critical aspect of the American system of the separation of powers is the function that the US presidents play in determining the future of American constitutional law, of the Supreme Court, and of the lower federal judiciary. Throughout his power of appointment and nomination, his power to form the lawsuit policy of the USA, and his capacity to recommend legal amendments and constitutional revisions of legal significance, the President certainly plays a crucial role in forming the legal constraints that will face his successors. This constitution-shaping part of the President is paradoxical since Americans take pleasure in the fact that America is a government of laws and no one in its constitutional system, not even the President, is above the law. The fact that the President is at the same time dependent on constitutional law and is a creator of constitutional law of course creates unease and problems. Government lawyers, and principally the Solicitor General of the USA, are unavoidably caught up in the conflicts produced by the President's tentative association with the Supreme Court. However, scholars have suggested three normative theories how government lawyers, especially the Solicitor General, should determine the President's and the Court's sharply contrasting constitutional outlooks. Of course, some claim that government lawyers ought to take their lead from the President (See McGinnis, 1992)1, others believe they must take their lead from the Court (See Caplan, 1987)2, and still others, such as former Solicitor General Charles Fried, that they should act as partly independent Burkean representatives "elected" by the President to "represent" him before the Court (See Fried, 1991)3. The thorny relationship between the President and the Supreme Court concerning the development of constitutional law has different consequences for different individuals who happen to be government lawyers at any given point in time. The President & The Supreme Court: The Relationship A major principle of US constitutional system is that the President and his colleagues are conditional on the same laws that bind typical private citizens. The Constitution itself assumes as much since it requires the President to "preserve, protect and defend the Constitution" (U.S. Const. art. II, 1, cl. 7)4 and to "take [c]are that the [l]aws be faithfully executed" (U.S. Const. art. II, 3)5. In addition, the Constitution authorizes the trial of all executive branch officials, except possibly for the President, and even he can be impeached after leaving office. In the Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer, 1952)6, Justice Jackson underlined that "ours is a government of laws, not of men and . . . we submit ourselves to rulers only if under rules" (Id. at 646) "With all its defects, delays[,] and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations" (Id. at 655). The Supreme Court has endorsed the principle that the President is required by the law in numerous cases over the last 200 years and has added to this the notion that sometimes the President's duty to follow the law requires him to implement court rulings with which he differs. This rule that the President is conditional not only to the law however also that "it is emphatically the province and duty of the judicial department to say what the law is" (Marbury v. Madison, 1803)7 is related most remarkably with Marbury v. Madison, Kendall v. United States, The Steel Seizure Case, United States v. Nixon, and Clinton v. Jones. In the last of these cases resolved only one year ago the Court said, "[w]e have long held that when the President takes official action [we have] the authority to determine whether he has acted within the law. . . . [I]t is also settled that the President is subject to judicial process in appropriate circumstances" (Youngstown, 343 U.S. at 579)8. In view of these cases, and many others decided over the last 200 years (Youngstown, 343 U.S. at 593-628)9, there can be certainly either that the President is required to adhere to the law or that on circumstances this duty will oblige him to follow the authorization of the federal courts by implementing their judgments rendered in appropriately brought cases or disputes. These two responsibilities might rather be described as maxims of US constitutional system. Still, it is no less a maxim of US political system that "no matter whether the constitution follows the flag or not, the Supreme Court follows" (Dunne, 1900). Principally, the Supreme Court and the lower federal courts follow the presidential election returns since the President plays the most important role in remodeling the very federal courts whose authorization he is from time to time called upon to follow. Professors Robert Dahl and Gerald Rosenberg have explained the process by which the judiciary is made to respect the election returns in general. Despite the fact that the Senate simply is a check on the President's power to reform the federal courts, it is however clear that the President plays a bigger role in reforming the federal courts than does the Senate. This is rather the result of the great respect regarding their nominations to the lower federal courts that presidents get from the Senate and partially the result of the complexity the Senate deals with in growing constant opposition to presidential efforts to modify the judicial positions of the Supreme Court. The general public realizes that presidents play a crucial role in reforming the federal courts and in fact the whole judiciary. Thus, American presidential elections normally engage in discussions over legal and constitutional matters. The American Presidents as a matter of fact must have some kind of plan for the Supreme Court and for the legal system as a whole. This duty to have a plan is a real world political responsibility; it is unlike from the more conjectural duty that Presidents deal with to take independently and to implement the Constitution and laws of the USA. Indeed, the many executive officers and constitutional scholars who have claimed for departmentalism or coordinate assessment, it is definitely the case that all Presidents must, as a political issue, have some objectives in mind whilst recruiting the legal positions in their administrations and deciding upon their court nominations. Thus presidential elections often turn to some extent on issues of legal policy and Presidents must, as a matter-of-fact have some kind of program for the Supreme Court and for the legal system. The voters, and especially the opinion-shaping leaders that advises the voters, are responsive that the President obviously plays a major role in reforming the future of constitutional law. The President's constitutional power over federal judicial appointments, particularly Supreme Court appointments, is generally acknowledged and for many is a significant concern in casting votes for the presidency. In a close election, a presidential candidate's position on issues of judicial appointments potentially could be crucial. In addition, the public perhaps has a discerning sense that the President can influence the law enforcement philosophy of the Executive Branch. This perception, certainly, is in no way a wrong one. Nevertheless, the President appoints all federal judges and the important leadership of the Justice Department that include all of the U.S. Attorneys, and the General Counsels of the Cabinet Departments and agencies. He therefore appoints almost all of the leading law enforcement staff in the government and all of the major litigator in the government, including most importantly the Solicitor General. Lastly, the President, with the assistance and help of his legal advisers, urges the Congress new laws and, from time to time, even new constitutional changes. Some of these laws and changes try to annul federal court decisions through the political process. Hence, through his suggestion power, his veto power, and his capacity to manage the national policymaking program, the President has however other powers over national legal policy. The typical public is perhaps not responsive to the more subtle ways in which the President can manipulate legal policy, although the many journalists who cover the Executive Branch do advise the public the general sense that who the President is matters for how legal policy issues are decided. In restrained and plain ways, the public learned what the President's views are on matters of legal policy, and this alertness influences decisions about reelection and about the election of successors. Various Presidents will indeed have different aims when it comes to matters of legal policy. Some administrations for instance Franklin Roosevelt's, Richard Nixon's, or Ronald Reagan's will have transformative doctrinal goals: They made it a main goal of their administrations to amend the Supreme Court and to modify its doctrines in specific ways. Other American administrations for example Harry Truman's or Gerald Ford's have had more rational objectives. In Ford's case, the need to reinstate trust in the rule of law after Richard Nixon's misdemeanors and resignation proved to be of major consequences to any meticulous goals. An administration's legal policy objectives are shaped by the political background in which the President acquires office and in which he must act. Roosevelt depression-era wrestles with the lenient outlooks. Apart from political issues, some Presidents for personal reasons may want to be considered as great law givers or constitution makers. One of the reasons to look for the presidency is the aspiration for recognition and fame. Hence, most serving Presidents spend much of their time and force trying to affect a legacy. One kind of legacy is a position for having been a great policymaker or constitution maker. American presidents with great ambitions may often have or come to have great constitutional and legal aspirations also. The two aspirations have always been strongly related over the course of human history, and this relationship continues to be present in American constitutional politics. The past success of the U.S. Constitution makes it difficult for ambitious American politicians to leave a legacy. Ambitious American politicians accordingly must be prepared for the next best choice of bequeathing a constitutional change made up either of judicial appointments or of constitutional amendments and framework rulings. American President Influencing The Supreme Court: An Analysis Indeed the American presidents draw a wide range of powers in order to influence policy-making. An important means in that attempt is the appointment power, including the power to select justices to the Supreme Court. Despite the fact that most presidential programs to influence policy-making are restricted to the president's term in office, the judicial appointment power allows presidents with prospects to produce "an enduring legacy long after their terms is through" (Segal, Timpone, and Howard, 2000, 558)10. To be triumphant in this attempt to influence policy, presidents must be successful in getting the appointment of justices with comparable policy ideals, and those judicial ideals accordingly must then have a major influence on judicial votes. New studies propose that over the past half century, presidents have in fact been fairly successful in appointing justices who share their ideals and consequently vote in rough agreement with the ideals of the president (Scigliano, 197111; Segal, Timpone, and Howard, 2000)12. Yet, a considerable part of the variation in the voting of the justices is not interpreted by the actions of presidential ideals used in these or similar studies (Gates and Cohen, 198913; Lindquist, Yalof, and Clark, 200014; Segal and Cover, 198915; Segal, Timpone and Howard, 2000)16. These findings are in agreement with conclusions of most current Supreme Court intellectuals that thoughts are a major cause in the elucidation of the justices' decisions (Epstein and Knight, 199817; Maltzman, Spriggs and Wahlbeck, 200018; Songer and Lindquist, 1996)19. It is also commonly thought that all of the major participants in the selection process consider that the justices' outlooks are important (Epstein and Knight, 199820; Maltzman, Spriggs and Wahlbeck, 200021; Segal and Spaeth, 199322; Songer and Lindquist, 1996)23. Thus, the actions of presidents, senators, and interest groups all seemed to be forced mainly by their assessment of the analogy between the nominee's ideological values and their own policy ideals, and by strategic calculations (Moraski and Shipan, 199924; Overby et al, 199225; Ruckman, 199326; Segal, Cameron and Cover, 1992)27. Scholars consider that presidents often deem policy during the nomination process, although they disagree in the exact nature of the objectives that they seek to maximize, as well the weight they attribute to policy versus other goals (Baum, 200128; Moraski and Shippan, 1999)29. In addition, most accounts of the fundamental assumption identify that the president's choice may be influenced by the choices of other actors and institutions, including the Senate (Bailey and Chang, 200130; Maltese, 199531; Moraski and Shippan, 1999)32. Apparently, selection provides the president and his staff with some information. Yet, unreliable and methodical evidence suggests that they do not always have enough information to correctly recognize the ideals of the nominees. For instance, Eisenhower seems to have blundered in his judgment of Justice Brennan's ideology (Yalof, 1999). On the other hand, O’Brien argues that the United States laid the groundwork for a free judiciary as a means of improving democracy. Indeed, the judiciary consistently has shown a propensity “for deferring to the government and reinforcing traditional cultural values and norms” (p. 23). “The Supreme Court and the lower courts almost invariably reinforce the government’s position out of seemingly purblind deference.” The courts have “ceased to function as an independent judiciary, and merely follow the dictates of the administrative judgment” (p. 135)33. References Bailey; Michael, and Chang, Kelly H. (2001). "Comparing Presidents, Senators, and justices: Interinstitutional Preference Estimation." Journal of WW, Economics, and Organization 17 (2): 477-506. Baum, Lawrence. (2001). The Supreme Court. Washington, DC: CQ Press. Caplan, Lincoln. (1987). The Tenth Justice: The Solicitor General and The Rule of Law. Dunne, P. (1900). The Supreme Court's Decisions, in Mr. Dooley’s Opinions 26. Epstein, Lee, and Knight, Jack. (1998). The Choices Justices Make. Washington, DC: CQ Press. Fried, Charles. (1991). Order & Law: Arguing The Reagan Revolution-A Firsthand Account 172-205. Gates, John B., and Cohen, Jeffrey E. (1989). "Presidential Policy Preferences and Supreme Court Appointment Success." Policy Studies Review 8 (4): 800-11. Lindquist, Stefanie A., Yalof, David A. and Clark, John A. (2000). "The Impact of Presidential Appointments to the U.S. Supreme Court: Cohesive and Divisive Voting within Presidential Blocs." Political Research Quarterly 53 (4): 795-814. Maltese, John Antony. (1995). The Selling of Supreme Court Nominees. Baltimore, MD: Johns Hopkins University Press. Maltzman, Forrest; Spriggs II, James F and Wahlbeck, Paul J. (2000). Crafting Law on the Supreme Court: the Collegial Game. Cambridge, MA: Cambridge University Press. Marbury v. Madison. (1803). 5 U.S. (1 Cranch) 137, 177. McGinnis, John O. (1992). Principle Versus Politics: The Solicitor General's Office in Constitutional and Bureaucratic Theory, 44 Stan. L. Rev. 799. Moraski, Bryon J., and Shippan, Charles R. (1999). "The Politics of Supreme Court Nominations: A Theory of Institutional Constraints and Choices." American Journal of Political Science 43 (4): 1069-95. O'Brien, David M. (2003). Storm Center: The Supreme Court in American Politics. 6th ed. New York: W.W. Norton & Co. Overby, L. Marvin, Henschen, Beth M., Walsh, Michael H. and Strauss, Julie. (1992). "Counting Constituents? An Analysis of the Senate Confirmation Vote on Justice Clarence Thomas." American Political Science Review 86 (4): 997-1006. Ruckman, Jr., S. (1993). "The Supreme Court, Critical Nominations, and the Senate Confirmation Process." Journal of Politics 55 (3): 793-805. Scigliano, Roben. (1971). The Supreme Court and the Presidency. New York, NY: The Free Press. Segal, Jeffrey A., and Cover, Albert D. (1989). "Ideological Values and the Votes of U.S. Supreme Court Justices." American Political Science Review 83(2): 557-65. Segal,. Jeffrey A., Cameron, Charles M. and Cover, Albert D. (1992). "A Spatial Model of Roll Call Voting: Senators, Constituents, and Interest Groups in Supreme Court Confirmations." American Journal of Political Science 36 (1): 96-121. Segal, Jeffrey A., and Spaeth, Harold J. (1993). The Supreme Court and the Attitudinal Model. Cambridge, MA: Cambridge University Press. Segal, Jeffrey A., Richard, J., Timpone, and Robert M. Howard. (2000). "Buyer Beware? Presidential Success through Supreme Court Appointments." Political Research Quarterly 53 (3): 557- 95. Songer, Donald R, and Lindquist, Stefanie A. (1996). "Not the Whole Story: the Impact of justices' Values on Supreme Court Decision Making." American Journal of Political Science 40 (4): 1049-63. U.S. Const. art. II, 1, cl. 7. U.S. Const. art. II, 3. Yalof, David A. (1999). The Pursuit of justices: Presidential Politics and the Selection of Supreme Court Nominees. Chicago, IL: University of Chicago Press. Youngstown Sheet & Tube Co. v. Sawyer. (1952). 343 U.S. 579. Read More