美国最高法院——极简导论播客——第2集

大家好，欢迎来到这个简短的介绍。从古希腊到品牌塑造，从全球化到荷马史诗，从逻辑学到时尚潮流，我们将以简洁生动的方式带您领略一系列多元主题，满足您的好奇心探索。以下是今日的简短导览。

Hi, and welcome to a very short introduction. From ancient Greece to branding, globalization to Homer, and logic to fashion, we'll showcase a concise and dynamic insight into a range of diverse topics for wherever your curiosity may lead you. So here is today's very short introduction.

大家好，我是琳达·格林豪斯，我带来的《极简导览》主题是美国最高法院。这自然引出一个问题：什么是最高法院？这是个非常特殊的机构。如您所知，这套丛书面向全球受过教育且充满好奇的读者。

Hello. I'm Linda Greenhouse, and my VSI is the United States Supreme Court, a very short introduction. So, of course, that raises the question, what is the Supreme Court? It's a very unusual body. These VSI's, as you know, are written for an educated, interested audience from around the world.

因此丛书并不预设读者具备专业知识，只需怀揣求知欲即可。美国人对最高法院习以为常，却对其知之甚少。它有许多独特之处：多数国家设有解释基本法的高级法院，但唯有美国最高法院拥有终身任期制度——法官一经任命便终身任职。

And so they don't assume that people come to them with any specific knowledge, just with curiosity. So Americans kind of take the US Supreme Court for granted without actually knowing very much about it. It has many unusual aspects. Most countries have a high court that interprets their basic law, but actually none of them have one feature that the US Supreme Court has, which is life tenure. Judges are appointed for life.

全球再无其他高等法院采用这种制度。实际上，美国50个州都设有解释州法律的最高法院，其中仅罗德岛州实行法官终身制，其余各州或设任期限制，或规定年龄上限。最高法院另一特殊之处在于其巨大权力。

There is no other high court in the world that does that. In fact, of the 50 states in The US, each one of them has a high court that interprets state law. Only one of the 50 Rhode Island has life tenure for its judges. The others have terms of years or age limits. And the other unusual thing about the US Supreme Court is its enormous power.

它有权宣布民选国会通过的法律违宪，能解释时常语焉不详的联邦法规——事实上许多法案在国会表决时，议员们就存心留待最高法院裁决争议。本书内容如何？我从历史脉络讲起，希望读者能认识到：最高法院如何自我书写历史、自我定义权力。

It has the ability to declare laws passed by the democratically elected congress unconstitutional. It has the ability to interpret federal statutes, many of which are vague and desperately in need of some interpretation. In fact, many of them are enacted by congress without the ability to resolve various disputes on the floor of the House of Representatives or the Senate, and they figure, let's let the Supreme Court figure it out. So what's what's in this book? I start with some history, and one takeaway that I would like people to get from reading the book is the enormous degree to which the Supreme Court has written its own story, has defined its own power.

宪法制定者们原以为法院不会举足轻重。亚历山大·汉密尔顿在《联邦党人文集》（实为说服各州批准宪法的政治文件）中称司法部门是『最不危险的部门』。宪法文本第三条仅规定『设立最高法院及国会随时下令设立的下级法院』，未赋予具体权力。

The expectation of the framers who wrote the constitution was that the court would not be terrifically important. Alexander Hamilton, in one of the Federalist Papers, which were a set of basically political documents aimed at persuading people to vote to ratify the constitution, called the judiciary the least dangerous branch. The court wasn't given any specific powers, really, in the text of the constitution. Article three, which is the judiciary article, simply says, there shall be one supreme court, and such other courts as Congress may, from time to time, establish. So it was an early supreme court under the fourth chief justice, the great chief justice John Marshall, who's actually often considered to be the first chief justice, but actually he was number four, who actually helped his court to the power to declare laws unconstitutional, the power known as judicial review.

直到第四任首席大法官约翰·马歇尔（常被误认为首任）任内，最高法院才通过『马伯里诉麦迪逊案』确立违宪审查权。他宣称『阐明法律真谛乃最高法院之权力与职责』。耐人寻味的是，此后我们便默认了这种权力——它深刻塑造了美国历史：1954年『布朗诉托皮卡教育局案』宣布种族隔离违宪，由此掀起民权革命；2000年『布什诉戈尔案』叫停佛州重新计票，实际决定了小布什当选总统。

And he said, it is the duty, the power and duty of the Supreme Court to declare what the law is. So I think it's very interesting for people to realize that we've assumed that power ever since. It it has helped shape important aspects of The United States history. For instance, in Brown against Board of Education in 1954, when the court said that school segregation by race was unconstitutional, that was the Supreme Court that helped launch the civil rights revolution. And in February, when the court said, by the way, there should be no more recounting of the presidential votes in the disputed election of the state of Florida, case called Bush against Gore.

最高法院的权力显而易见，但这并非制宪者本意。另一个常见误解关乎首席大法官的权责——其正式头衔是『美国首席大法官』而非『最高法院首席大法官』。

It was the Supreme Court that effectively made George w Bush president of The United States. So the court's power is really quite obvious. We assume it, but it wasn't necessarily part of the part of the original plan. Another thing that's often misunderstood about the Supreme Court is the power, or lack thereof, of the chief justice. The chief justice of The United States, not as is often said, the chief justice of the Supreme Court.

迄今为止所有首席大法官均为男性，他统领整个司法体系（包括上千名依宪法第三条享有终身任期的法官，以及某些特别法庭的非终身制法官）。宪法对首席大法官职责几乎未作规定，唯有一处奇特条款：总统弹劾案审判时须由首席大法官主持。

He has always been a man until now. He is the person in charge of the entire judicial branch, more than a thousand judges, most of them life tenured under Article three. Some judges who are called Article one judges of specialized courts actually don't have life tenure. But there's nothing in the constitution that really defines the chief justice's role, except for one rather odd little difference. The chief justice, the constitution provides, shall preside over the senate trial of the impeachment of a president.

因此美国民众曾目睹约翰·罗伯茨首席大法官主持对特朗普的参议院弹劾审判（最终宣告无罪）。为何宪法如此规定？因为参议院常规主持者——副总统——在弹劾总统时显然存在利益冲突。

The impeachment of a president. So the American public was treated to seeing chief justice John Roberts sit in the senate presiding over the senate trial of the impeachment of Donald Trump. Of course, that led to his acquittal. But why would the constitution say that? Well, it's because the president of the senate, who ordinarily presides over the senate, is the vice president of The United States.

因此，如果总统被弹劾，副总统将继任总统职位。这确实存在一定的利益冲突。制宪者们深思熟虑后，决定由首席大法官来——我正要说'走过街去'，因为如今最高法院与国会大厦仅一街之隔。但在政府刚从费城迁至华盛顿特区的早期，最高法院就在国会大厦内办公，那个场所现在被称为旧最高法院议事厅，实际上是个保存完好的博物馆级精美空间。

So if the president is being impeached, the vice president would become president. So that is a little bit of a conflict of interest. And so the framers thought that through, and told the chief justice to well, was about to say, walk across the street, because today the Supreme Court is across the street from the US Capitol. But in the early days, once the government moved from Philadelphia to Washington DC, the Supreme Court met in the Capitol, in what now is called the old Supreme Court Chamber. It's actually a beautiful space that's maintained as a museum.

疫情期间想必无法参观，但通常这里是对公众开放的。若有历史爱好者造访华盛顿特区，非常值得去国会大厦地下室看看这个精致的小厅堂。话说回来，首席大法官的职权如同最高法院的权威般不断扩展，掌管着整个司法分支。但本质上，他仅是九票中的一票，无权命令其他大法官行事。

I'm sure during the pandemic, that's not available to be seen, but ordinarily, it's open to public view. And if anybody's in Washington DC with a taste for history, it's very much worth going down to the basement of the Capitol and seeing this beautiful little room. So anyway, the chief justice's powers really also grew like the court's powers, being in charge of this entire branch of government. But basically, his is only one vote out of nine. He can't tell the others what to do.

每位大法官都需单独获得任命，拥有独立委任状、私人办公室、专属团队和法官助理。但有趣的是，这虽被称为'合议庭'，却并不意味着他们总是和睦相处——'collegial'一词的本意并非如此。

They're all separately confirmed. They all have their own commissions. They all have their own chambers with their own staff, their own law clerks. But one thing that's very interesting, of course, it's a so called collegial court, which doesn't necessarily mean they all get along. That's not the meaning of the word collegial.

其真正含义在于他们必须协同行动才能有所作为。九位大法官中若得不到另外四人支持（凑足五票），任何决议都无法通过。首席大法官虽仅有一票，却能定下基调——他有权在自身属于多数方时指定多数意见书的撰写人。若他不在多数方，则该权力转交参与多数方的最资深联席大法官。

It means that they have to act in concert in order to do anything. So the nine justices without four other people agreeing with you, counting up to five, you can't get anything done. So the chief justice is one vote, but but he does set a tone. He does have the power to assign the majority opinion in any case in which he himself has voted in the majority. If he has not voted in the majority, then that power falls to the the associate justice, who is senior, who has voted in the majority.

指定意见书撰写人的权力至关重要，因为最高法院判决的魔鬼往往藏在细节中。每份判决书都在构建叙事，将案件事实与法律原则故事化。不同大法官行文风格各异，因此由谁执笔影响深远。2020年面世的是我《最高法院简论》的第二版——

And the power to assign an opinion is an important power, because the devil is in the details of a lot of Supreme Court opinions. And each Supreme Court decision, the opinion that backs up that decision, tells a narrative. You might say narrativizes the the story and the law. And so each justice develops a certain voice, and it kind of matters who gets the assignment. So what's come out in 2020 is the second edition of my VSI.

初版写于2000年代，2011年出版。为何需要再版？我向编辑解释：虽然法院架构未变，但围绕它的政治生态和任命程序已天翻地覆。初版中我按宪法规定描述过任命流程——总统提名，参议院确认。当时我认为只要提名人在国家意识形态共识范围内，无论总统党派或参议院多数党如何，提名人都极可能通过确认。

I wrote the original one in '20 it came out in 2011. So why do we need a second opinion? Why did I feel the need? And I went back to my editor, and I said, I think it's time for a second edition. I mean, the court hasn't changed.

但随着美国政治极化加剧，这个机制彻底改变。从奥巴马时代到特朗普时期，参议院对总统提名人选的确认已演变成激烈对抗。奥巴马提名的两位高度资历的女性大法官索托马约尔和卡根，虽无强烈意识形态色彩，却在参议院共和党领袖麦康奈尔指挥下遭多数共和党人反对——麦康奈尔公开宣称要阻挠奥巴马总统的所有政绩。

It's still the same basic structure. But what really changed were the politics surrounding the court, the appointment process. That's become something very different, In my first edition, I talked about the appointment process under the constitution. The president makes the appointment, and the senate must confirm. And what I said then, and what I always believed to be true, is that as long as the president, no matter what the president's party, no matter what the majority in the senate, as long as the president makes the nomination, that's sort of within the bounds of the existing ideological consensus in the country.

因此本书初版索引里自然找不到麦康奈尔的名字，但再版中我详述了提名程序的演变。最后我想指出一个极具标志性的现象：当今最高法院的极化分布完全映射了国家政治版图——五位保守派大法官皆由共和党总统任命，四位自由派皆出自民主党总统，历史上曾有的跨党派提名现象已不复存在。

That nominee is gonna chances are high that nominee is gonna get confirmed. That changed. That really changed as the polarized American politics changed, and we've had real shoot them up showdowns in the Senate over presidential nominations, not only in the Trump era, but starting in the Obama era. President Obama made two nominations to the Supreme Court, Sonia Sotomayor and Elena Kagan, two very highly qualified women. Neither of them was particularly ideological, and a great majority of Republicans voted against them, voted to deny their confirmation under marching orders from the Senate Republican leader, Mitch McConnell, who basically had had publicly said that his desire was to deprive President Obama of accomplishing anything.

（注：此处为保持元素对应，将原文最后两句分拆为两个输出元素）

So in the first edition of my book, obviously the name Mitch McConnell would not be found in the index. But in the second edition, I tell the story of what's become of the nomination process. And I'll just close with one more observation about the court that I think is quite significant. Today, the first time in certainly modern American history, the polarization on the court maps completely onto the political polarization in the country. And what I mean is this, we have basically five conservative justices.

那些跨越党派界限的任命案例中，不乏极具历史意义的典范。

We have four, basically, liberal justices. The five were all appointed by Republican presidents. The four were all appointed by Democratic presidents. There's no crossover. And throughout our history, there have been crossover, some of them very famous.

厄尔·沃伦首席大法官，这位上世纪五六十年代著名且非常自由派的最高法院首席大法官，是由共和党总统德怀特·艾森豪威尔提名的。本质上是为了让厄尔·沃伦这位潜在的竞争者退出共和党政治。他曾是加利福尼亚州州长，在政坛非常活跃。据说艾森豪威尔总统说过——这可能是杜撰的——

Chief Justice Earl Warren, the famous, very liberal chief justice in the nineteen fifties and nineteen sixties, was named to the court by president Dwight Eisenhower, a republican. Basically, to get Earl Warren out of republican politics as a potential competitor. He had been very he had been governor of California, very active in politics. Politics. And president Eisenhower is said to have said this may be apocryphal.

我在政治生涯中只犯过两个错误，而他们都坐在最高法院里。这两位都是他任命的——沃伦首席大法官和威廉·布伦南大法官，后者甚至比沃伦更自由派，之所以被任命是因为他是来自新泽西州的东北部天主教徒，艾森豪威尔总统当时正试图争取天主教选票。因此最高法院从未脱离过政治，但如今它直接处于美国公众的政治视野和政治关注中。这对法院这一机构意味着什么，对我们的政治又意味着什么，是一个正在展开的故事，超出了我这本小《非常短介绍》的范畴。谢谢。

I've only made two mistakes in my political career, and they're both sitting on the supreme court. And they were two of his appointees, Chief Justice Warren and Justice William Brennan, who was even more liberal than Chief Justice Warren, and had been appointed because he was a Northeastern Catholic from New Jersey, and President Eisenhower was trying to appeal to the Catholic vote. So the Supreme Court has never been out of politics, but these days, it's directly in the political foresight, the political sites of the American public. And what that means for the court as the institution, what that means for our politics is an unfolding story that's outside the bounds of my of my little VSI. Thank you.