The Ripe, the Moot, and the Ugly: Least Dangerous Branch Week(s) Coming Up

In Federalist Paper 78 Alexander Hamilton gave reasons why the judiciary would be the “least dangerous (branch of government to) the political rights (prescribed by) the Constitution”: the executive “dispenses the honors” and “holds the sword of the community”; the legislature “not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated; the judiciary in the end has only the power of judgment, and “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” But by the 1830s de Tocqueville would write that “armed with the power of declaring laws unconstitutional, the American magistrate perpetually interferes in political affairs. . . . Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question” (book I, chapter 16). Alexander Bickel, in his landmark book The Least Dangerous Branch, written in the aftermath of the 1954 Brown v. Board of Education school desegregation decision, defended judicial review, used judiciously! Both Samuel Alito and John Roberts have pointed to Bickel as a formative influence. But Bickel died the year Richard Nixon resigned, so he cannot tell us whether those justices are coping with the “countermajoritarian difficulty” and practicing the “passive virtues” in a Bickel-worthy statesmanlike way (could the three women be more Bickelian?).

Will this year’s most deeply-contested decisions be viewed as judicious in the future? Linda Greenhouse, who covered the Court for decades, is apprehensive. Her recent Opinionator column in the NYT called out the conservative faction for being just that, a faction in a hurry (she does not mention Bickel’s theme of passive virtues–see the August 2012 Scotusblog online symposium for that theme and many others, with much historical context on mootness and ripeness in the Warren Court era). Her particular warrants, so to speak, are that a 2003 affirmative action ruling could and should have been left to settle and rest for 25 years, and that the conservatives are grabbing too quickly for “the next potential vehicle for shutting down affirmative action.” Why? Out of fear that their five-four majority could slip away any day now. Greenhouse does not address the impending voting rights decision, but there is plenty of cause for concern that the near-unanimous 2006 Congressional renewal–until 2031–of the Voting Rights Act will be subjected to ill-advised countermajoritarian scrutiny.
The same-sex marriage issue is unlikely, I think, to get a clear resolution this year, though the justices ought to realize that the issue is somewhere between moot and absurd for most youthful Americans.

Is the Court going to issue unripe and/or soon-to-be-moot rulings? That may be the ugly reality, though I hope for surprises.

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