U.S. Supreme Court
MORRISON v. OLSON, 487 U.S. 654 (1988)
This case presents the question of the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978. JUSTICE SCALIA, dissenting:
It is the proud boast of our democracy that we have "a government of laws and not of men." Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:
The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles...But just as the mere words of a Bill of Rights are not self-effectuating, the Framers recognized "[t]he insufficiency of a mere parchment delineation of the boundaries" to achieve the separation of powers (Federalist No. 73. "[T]he great security," wrote Madison, "against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack" (Federalist No. 51). Madison continued:
That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish - so that "a gradual concentration of the several powers in the same department," (Federalist No. 51), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf....
If to describe this case is not to decide it, the concept of a government of separate and coordinate powers no longer has meaning. The Court devotes most of its attention to such relatively technical details as the Appointments Clause and the removal power, addressing briefly and only at the end of its opinion the separation of powers. As my prologue suggests, I think that has it backwards. Our opinions are full of the recognition that it is the principle of separation of powers, and the inseparable corollary that each department's "defense must . . . be made commensurate to the danger of attack," (Federalist No. 51), which gives comprehensible content to the Appointments Clause, and determines the appropriate scope of the removal power.... The playing field for the present case, in other words, is a level one. As one of the interested and coordinate parties to the underlying constitutional dispute, Congress, no more than the President, is entitled to the benefit of the doubt...
To repeat, Article II, 1, cl. 1, of the Constitution provides:
The Court concedes that "[t]here is no real dispute that the functions performed by the independent counsel are `executive'," though it qualifies that concession by adding "in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch." The qualifier adds nothing but atmosphere. In what other sense can one identify "the executive Power" that is supposed to be vested in the President (unless it includes everything the Executive Branch is given to do) except by reference to what has always and everywhere - if conducted by government at all - been conducted never by the legislature, never by the courts, and always by the executive. There is no possible doubt that the independent counsel's functions fit this description....Governmental investigation and prosecution of crimes is a quintessentially executive function.
As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute...As I have said, however, it is ultimately irrelevant how much the statute reduces Presidential control. The case is over when the Court acknowledges, as it must, that "[i]t is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity."
It effects a revolution in our constitutional jurisprudence for the Court, once it has determined that (1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and control of the President, nonetheless to proceed further to sit in judgment of whether "the President's need to control the exercise of [the independent counsel's]discretion is so central to the functioning of the Executive Branch" as to require complete control, whether the conferral of his powers upon someone else "sufficiently deprives the President of control over the independent counsel to interfere impermissibly with [his] constitutional obligation to ensure the faithful execution of the laws," and whether "the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties." It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.
The utter incompatibility of the Court's approach with our constitutional traditions can be made more clear, perhaps, by applying it to the powers of the other two branches. Is it conceivable that if Congress passed a statute depriving itself of less than full and entire control over some insignificant area of legislation, we would inquire whether the matter was "so central to the functioning of the Legislative Branch" as really to require complete control, or whether the statute gives Congress "sufficient control over the surrogate legislator to ensure that Congress is able to perform its constitutionally assigned duties"? Of course we would have none of that. Once we determined that a purely legislative power was at issue we would require it to be exercised, wholly and entirely, by Congress.
Or to bring the point closer to home, consider a statute giving to non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts - perhaps "clear error" review, which would be a fair judicial equivalent of the Attorney General's "for cause" removal power here. Is there any doubt that we would not pause to inquire whether the matter was "so central to the functioning of the Judicial Branch" as really to require complete control, or whether we retained "sufficient control over the matters to be decided that we are able to perform our constitutionally assigned duties"? We would say that our "constitutionally assigned duties" include complete control over all exercises of the judicial power - or, as the plurality opinion said in Northern Pipeline Construction Co. v. Marathon Pipe Line Co. (1982): "The inexorable command of [Article III] is clear and definite: The judicial power of the United States must be exercised by courts having the attributes prescribed in Art. III." We should say here that the President's constitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States....
The Court has, nonetheless, replaced the clear constitutional prescription that the executive power belongs to the President with a "balancing test." What are the standards to determine how the balance is to be struck, that is, how much removal of Presidential power is too much? Many countries of the world get along with an executive that is much weaker than ours - in fact, entirely dependent upon the continued support of the legislature. Once we depart from the text of the Constitution, just where short of that do we stop? The most amazing feature of the Court's opinion is that it does not even purport to give an answer. It simply announces, with no analysis, that the ability to control the decision whether to investigate and prosecute the President's closest advisers, and indeed the President himself, is not "so central to the functioning of the Executive Branch" as to be constitutionally required to be within the President's control. Apparently that is so because we say it is so...Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all.
....In sum, this statute does deprive the President of substantial control over the prosecutory functions performed by the independent counsel, and it does substantially affect the balance of powers. That the Court could possibly conclude otherwise demonstrates both the wisdom of our former constitutional system, in which the degree of reduced control and political impairment were irrelevant, since all purely executive power had to be in the President; and the folly of the new system of standardless judicial allocation of powers we adopt today. .... The Court essentially says to the President: "Trust us. We will make sure that you are able to accomplish your constitutional role." I think the Constitution gives the President - and the people - more protection than that.
....The notion that every violation of law should be prosecuted, including - indeed, especially - every violation by those in high places, is an attractive one, and it would be risky to argue in an election campaign that that is not an absolutely overriding value. Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall. The reality is, however, that it is not an absolutely overriding value, and it was with the hope that we would be able to acknowledge and apply such realities that the Constitution spared us, by life tenure, the necessity of election campaigns....By its shortsighted action today, I fear the Court has permanently encumbered the Republic with an institution that will do it great harm.
Worse than what it has done, however, is the manner in which it has done it. A government of laws means a government of rules. Today's decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law. It extends into the very heart of our most significant constitutional function the "totality of the circumstances" mode of analysis that this Court has in recent years become fond of. Taking all things into account, we conclude that the power taken away from the President here is not really too much. The next time executive power is assigned to someone other than the President we may conclude, taking all things into account, that it is too much. That opinion, like this one, will not be confined by any rule. We will describe, as we have today (though I hope more accurately) the effects of the provision in question, and will authoritatively announce: "The President's need to control the exercise of the [subject officer's] discretion is so central to the functioning of the Executive Branch as to require complete control." This is not analysis; it is ad hoc judgment. And it fails to explain why it is not true that - as the text of the Constitution seems to require, as the Founders seemed to expect, and as our past cases have uniformly assumed - all purely executive power must be under the control of the President.
The ad hoc approach to constitutional adjudication has real attraction,
even apart from its work-saving potential. It is guaranteed to produce
a result, in every case, that will make a majority of the Court happy with
the law. The law is, by definition, precisely what the majority thinks,
taking all things into account, it ought to be. I prefer to rely upon the
judgment of the wise men who constructed our system, and of the people
who approved it, and of two centuries of history that have shown it to
be sound. Like it or not, that judgment says, quite plainly, that "[t]he
executive Power shall be vested in a President of the United States."
U.S. Supreme Court
PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY, 505 U.S. 833 (1992)
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE
THOMAS join, concurring in the
judgment in part and dissenting in part.
My views on this matter are unchanged from those I set forth in my separate
opinions in Webster v. Reproductive Health
Services (1989) and Ohio v. Akron Center for Reproductive Health (1990).
The States may, if they wish, permit abortion on
demand, but the Constitution does not require them to do so. The permissibility
of abortion, and the limitations upon it, are to
be resolved like most important questions in our democracy: by citizens
trying to persuade one another and then voting. As the
Court acknowledges, "where reasonable people disagree, the government
can adopt one position or the other." The Court is
correct in adding the qualification that this "assumes a state of affairs
in which the choice does not intrude upon a protected
liberty," but the crucial part of that qualification is the penultimate
word. A State's choice between two positions on which
reasonable people can disagree is constitutional even when (as is often
the case) it intrudes upon a "liberty" in the absolute
sense. Laws against bigamy, for example - with which entire societies
of reasonable people disagree - intrude upon men and
women's liberty to marry and live with one another. But bigamy happens
not to be a liberty specially "protected" by the
Constitution.
That is, quite simply, the issue in this case: not whether the power
of a woman to abort her unborn child is a "liberty" in the
absolute sense; or even whether it is a liberty of great importance
to many women. Of course it is both. The issue is whether it
is a liberty protected by the Constitution of the United States. I
am sure it is not. I reach that conclusion not because of anything
so exalted as my views concerning the "concept of existence, of meaning,
of the universe, and of the mystery of human life."
Rather, I reach it for the same reason I reach the conclusion that
bigamy is not constitutionally protected - because of two
simple facts: (1) the Constitution says absolutely nothing about it,
and (2) the longstanding traditions of American society have
permitted it to be legally proscribed....
....The authors of the joint opinion, of course, do not squarely contend that Roe v. Wade was a correct application of "reasoned judgment"; merely that it must be followed, because of stare decisis. But in their exhaustive discussion of all the factors that go into the determination of when stare decisis should be observed and when disregarded, they never mention "how wrong was the decision on its face?" Surely, if "[t]he Court's power lies . . . in its legitimacy, a product of substance and perception," the "substance" part of the equation demands that plain error be acknowledged and eliminated. Roe was plainly wrong - even on the Court's methodology of "reasoned judgment," and even more so (of course) if the proper criteria of text and tradition are applied....It is not reasoned judgment that supports the Court's decision; only personal predilection. Justice Curtis' warning is as timely today as it was 135 years ago:
"[W]hen a strict interpretation of the Constitution,
according to the fixed rules which govern the interpretation of laws, is
abandoned, and the theoretical opinions of
individuals are allowed to control its meaning, we have no longer a
Constitution; we are under the government
of individual men, who for the time being have power to declare what the
Constitution is, according to their own views
of what it ought to mean." [Dred Scott v. Sandford, 19 How. 393,
621
(1857) (dissenting opinion)].
[The majority opinion writes that] "Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe . . ., its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."
[But the majority's] description of the place of Roe in the social history
of the United States is unrecognizable. Not only did Roe not, as the Court
suggests, resolve the deeply divisive issue of abortion; it did more than
anything else to nourish it, by elevating it to the national level, where
it is infinitely more difficult to resolve. National politics were not
plagued by abortion protests, national abortion lobbying, or abortion marches
on Congress before Roe v. Wade was decided. Profound disagreement existed
among our citizens over the issue - as it does over other issues, such
as the death penalty - but that disagreement was being worked out at the
state level. As with many other issues, the division of sentiment within
each State was not as closely balanced as it was among the population of
the Nation as a whole, meaning not only that more people would be satisfied
with the results of state-by-state resolution, but also that those results
would be more stable. Pre-Roe, moreover, political compromise was possible.....
[T]o portray Roe as the statesmanlike "settlement" of a divisive issue,
a jurisprudential Peace of Westphalia that is worth preserving, is nothing
less than Orwellian. Roe fanned into life an issue that has inflamed our
national politics in general, and has obscured with its smoke the selection
of Justices to this Court, in particular, ever since. And by keeping us
in the abortion-umpiring business, it is the perpetuation of that disruption,
rather than of any Pax Roeana that the Court's new majority decrees.
[The majority opinion also argues that] "[T]o overrule under fire . . . would subvert the Court's legitimacy. . . .The Court implicitly undertakes to remain steadfast. . . . The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and . . . the commitment [is not] obsolete. . . .If the Court's legitimacy should be undermined, then so would the country be in its very ability to see itself through its constitutional ideals."
[If so,] The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges - leading a Volk who will be "tested by following," and whose very "belief in themselves" is mystically bound up in their "understanding" of a Court that "speak[s] before all others for their constitutional ideals" - with the somewhat more modest role envisioned for these lawyers by the Founders: "The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment. . . ." [Federalist No. 78.]
It is particularly difficult, in the circumstances of the present decision,
to sit still for the Court's lengthy lecture upon the virtues of
"constancy," of "remain[ing] steadfast," and adhering to "principle."
Among the five Justices who purportedly adhere to Roe, at
most three agree upon the principle that constitutes adherence (the
joint opinion's "undue burden" standard) - and that principle
is inconsistent with Roe. To make matters worse, two of the three,
in order thus to remain steadfast, had to abandon previously
stated positions. It is beyond me how the Court expects these accommodations
to be accepted as grounded truly in principle,
not as compromises with social and political pressures having, as such,
no bearing on the principled choices that the Court is
obliged to make. The only principle the Court "adheres" to, it seems
to me, is the principle that the Court must be seen as standing by Roe.
That is not a principle of law (which is what I thought the Court was talking
about), but a principle of Realpolitik - and a wrong one, at that.
I cannot agree with, indeed I am appalled by, the Court's suggestion
that the decision whether to stand by an erroneous
constitutional decision must be strongly influenced - against overruling,
no less - by the substantial and continuing public
opposition the decision has generated.... [W]hether it would "subvert
the Court's legitimacy" or not, the notion that we would decide a case
differently from the way we otherwise would have in order to show that
we can stand firm against public disapproval is frightening....We are offended
by these marchers who descend upon us, every year on the anniversary of
Roe, to protest our saying that the Constitution requires what our society
has never thought the Constitution requires. These people who refuse to
be "tested by following" must be taught a lesson. We have no Cossacks,
but at least we can stubbornly refuse to abandon an erroneous opinion
that we might otherwise change - to show how little they intimidate us....Instead
of engaging in the hopeless task of predicting public perception - a job
not for lawyers but for political campaign managers - the Justices should
do what is legally right by asking two questions: (1) Was Roe correctly
decided? (2) Has Roe succeeded in producing a settled body of law? If the
answer to both questions is no, Roe should undoubtedly be overruled.
In truth, I am as distressed as the Court is...about the "political
pressure" directed to the Court: the marches, the mail, the
protests aimed at inducing us to change our opinions. How upsetting
it is, that so many of our citizens (good people, not lawless
ones, on both sides of this abortion issue, and on various sides of
other issues as well) think that we Justices should properly
take into account their views, as though we were engaged not in ascertaining
an objective law, but in determining some kind of
social consensus. The Court would profit, I think, from giving less
attention to the fact of this distressing phenomenon, and more
attention to the cause of it. That cause permeates today's opinion:
a new mode of constitutional adjudication that relies not upon
text and traditional practice to determine the law, but upon what the
Court calls "reasoned judgment," which turns out to be
nothing but philosophical predilection and moral intuition....
What makes all this relevant to the bothersome application of "political pressure" against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here - reading text and discerning our society's traditional understanding of that text - the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality, our process of constitutional adjudication consists primarily of making value judgments...then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school - maybe better. If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours....
There is a poignant aspect to today's opinion. Its length, and what
might be called its epic tone, suggest that its authors believe
they are bringing to an end a troublesome era in the history of our
Nation, and of our Court. "It is the dimension" of authority,
they say, to "cal[l] the contending sides of national controversy to
end their national division by accepting a common mandate
rooted in the Constitution."
There comes vividly to mind a portrait by Emanuel Leutze that hangs
in the Harvard Law School: Roger Brooke Taney, painted
in 1859, the 82nd year of his life, the 24th of his Chief Justiceship,
the second after his opinion in Dred Scott. He is in black,
sitting in a shadowed red armchair, left hand resting upon a pad of
paper in his lap, right hand hanging limply, almost lifelessly,
beside the inner arm of the chair. He sits facing the viewer and staring
straight out. Thereseems to be on his face, and in his
deep-set eyes, an expression of profound sadness and disillusionment.
Perhaps he always looked that way, even when dwelling
upon the happiest of thoughts. But those of us who know how the lustre
of his great Chief Justiceship came to be eclipsed by
Dred Scott cannot help believing that he had that case - its already
apparent consequences for the Court and its
soon-to-be-played-out consequences for the Nation - burning on his
mind. I expect that, two years earlier, he, too, had thought
himself call[ing] the contending sides of national controversy to end
their national division by accepting a common mandate
rooted in the Constitution.
It is no more realistic for us in this case than it was for him in that
to think that an issue of the sort they both involved - an issue
involving life and death, freedom and subjugation - can be "speedily
and finally settled" by the Supreme Court, as President
James Buchanan, in his inaugural address, said the issue of slavery
in the territories would be. Quite to the contrary, by
foreclosing all democratic outlet for the deep passions this issue
arouses, by banishing the issue from the political forum that
gives all participants, even the losers, the satisfaction of a fair
hearing and an honest fight, by continuing the imposition of a rigid
national rule instead of allowing for regional differences, the Court
merely prolongs and intensifies the anguish.
We should get out of this area, where we have no right to be, and where
we do neither ourselves nor the country any good by
remaining.
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