There is a little reported fact that President Obama's court appointments are being held up in record numbers. Who cares? The Right does; that's who. You may remember that upon the announcement that David Souter would resign his seat on the Supreme Court a rumor was afoot that Senate Democrats conspired with Arlen Specter to force Justice Souter to resign (by presumably threatening to reveal damaging information about the justice) so that President Obama could appoint an extremist to the Court. It showed something important about Right; not only was this rumor paranoid, but it made absolutely no sense if you knew anything about Specter, Souter, the president, or the ability of even 60 Democrats to act in unison on any issue (which we subsequently saw demonstrated over and over in 2009 and 2010). The story was especially mean to Justice Souter, who long had been a decent public servant despite the fact that he never enjoyed working in DC and made no secret of wanting to return to his native New Hampshire. Souter retired at that time, not because he's some raging leftist who wanted to hand the president an opportunity to name what? a more raging leftist? (right wing paranoia again). No, Souter was a traditional liberal-moderate New England Republican -- perhaps the last one outside of Maine -- and saw the opportunity to leave the Court while resting assured that a responsible grown-up would appoint his successor.
By now, the president has an opportunity to name two justices to the Supreme Court. They have actually been good appointments, but hardly the Left counter-balance to the Right-wing justices the Republicans have already stacked the Court with. But, what should we make of the Court? Is it important to have progressives on the Court that would innovate and lead the law in new directions? I think the president would answer this question with a qualified "no," and I have to say I would agree with him. Qualified because the Court should be innovating and leading where appropriate, but it should not be legislating. And that is what it has been doing in many important decisions over the past forty years. Let's consider two very important Court decisions that are embraced by competing ideologies. The first is the 1995 case of Lopez v. U.S. The second is the 1973 Roe v. Wade case.
Lopez is less well known than Roe, but it is in some ways a much more important decision. The (Rehnquist) Court in Lopez invalidated a federal law on the grounds that Congress had exceeded its authority under the Commerce Clause of the Constitution. The federal law at issue prohibited the possession of a gun near a school. Congress enacted the law under its plenary authority to regulate interstate commerce. Since the New Deal, it has been settled law that Congress is given great deference in regulating interstate commerce, and a concern about the impact of guns near schools disrupting commerce is not even near the weakest link ever considered (and, btw, upheld) by the Court. This case was clearly a repudiation of New Deal jurisprudence and instead of a new way forward, it was actually couched in the states-rights jargon of pre-Civil War (and pre-13th, 14th, and 15th Amendments) jurisprudence that so many conservatives support. Congress was suddenly prevented from passing laws to protect people without significant interstate commerce nexus. No big deal, you say? The legal authority for the Civil Rights Act of 1964 rests on the Commerce Clause. Fortunately, the Warren Court upheld that Act as a valid exercise of federal authority to regulate interstate commerce. But, who knows what might happen if the Roberts Court revisits the issue. This Court has no problem revisiting established precedent and the recent comments of Mississippi Governor Haley Barbour and Kentucky Senator-elect Rand Paul suggest that the Republicans might be open to questioning the validity of the 1964 act.
Roe v. Wade is a mess and is just another example of liberals trying to explain the world in a right-wing context rather than offering a strong legal and political counter-narrative. The contorted reasoning of Roe (a Berger Court opinion) is clearly designed to support the outcome that abortion should be safe and legal. Something any rational political branch should have already decided. But, clearly this was a serious problem in many parts of the country. So, we get a decision that invents a right to privacy that protects abortion (to be fair, it was among a number of decisions that articulated this right). Now, don't get me wrong. The fact that there is no broad-based right to privacy (or to vote, for that matter) in the Constitution is a serious problem, but it is something that should be highlighted for correction. One may make the argument that the 4th Amendment lays down a right to privacy, but that is complicated. The Anti-Federalists were onto something when they complained that articulating certain rights in the Constitution would suggest others did not exist. The European way to understand rights is in the balancing context – not in absolutes. We talk about rights in absolutes in large part because that is the way we protected them, but in fact the courts have created twisted logic to get at what should be rights-balancing. Roe is a perfect example. Whether or not there is a right to privacy, the very same outcome could be attained through the more defensible method of rights-balancing. To claim that there is no state interest in protecting life (even unborn) is not very persuasive. However, the balancing of the rights of the woman to control her own reproduction, to ensure her own well-being, etc. versus that interest of the state is commonly recognized among western democracies. But, inventing a right to privacy, which then is trumped by the state interest in life (third trimester) is another example of the convoluted reasoning that the Court has used in numerous cases since at least the time of essentially interpreting the Privileges and Immunities Clause to mean nothing in The Slaughterhouse Cases. It is also what necessitated the creation of the substantive due process jurisprudence. Every single one of those substantive due process cases should have been decided under the P&I Clause. But, the Court had already emasculated the Clause and now was trying to explain why Americans had certain privileges and immunities under the Constitution when the clause that literally protects them in fact does not do so. So, they called it due process – substantive due process - and looked to the 14th Amendment instead. The reasoning was nonsense even if the outcome was correct. (You only get so many of those before the outcome is absolutely not correct.) Trying to reach the outcome desired rather than making sense out of the law is a failing proposition over time. It was in The Slaughterhouse Cases (or at least should be – bring back the P&I Clause!), in Dred Scott, in the Mormon Marriage Case (you may like the outcome, but the reasoning was awful), in Plessy, and in Bush v. Gore (which the justices admitted by unprecedentedly announcing that the case had no precedential value). This is a methodology that should be abandoned.
What's the problem with each decision? The outcome? Perhaps, but probably because the outcome should have been reached through the democratic (political) branches. With Roe, supporters will complain that there was not political support to pass the law. With Lopez, you could say the same – in fact, the law in question was democratically adopted by the political branches. After all, neither case would have been a controversy in the first case if there were consensus on the outcomes. I think what this means is that we should not rely on the courts to do the organizing for us, or even be a Plan B. Because the arguments we make for judicial intervention can be easily (and, in fact, are being) used against us. What we are seeing from the Roberts Court right now is that precedent is meaningless. These guys (and the ones doing this are all men) will stop at nothing to implement right-wing policies (assuming they can muster five votes). All they need is a case or controversy. Which is why the Virginia district court ruled as it did. It's opinion is legal nonsense, but it's ruling creates the controversy among circuits that will get the issue to the Supreme Court.
The issue of an "activist" judiciary is one that conservatives have used to attack not only liberal lawyers and judges, but centrist ones. In another irony (or hypocrisy) that has been a staple concern of the conservative era from 1964 to 2006, the most activist Court the country has ever seen has been ... their own Rehnquist Court (soon to be superseded by the Roberts Court, I bet), not the Warren Court (which, in fact, existed for only a few years in the 1960s). And this should give us some pause. Not because turn-about is not fair play, but because the Court should not be leading (or trailing, for that matter) public opinion by too much in a democratic republic. But, don't conservatives hate activist courts?
Activist courts? Like the one that invalidated Health Care Reform in Virginia last week? Conservatives love activist courts – as long as they are on their side. Never mind that this is just an instrumental decision designed to create a conflict among circuits so that the Court will accept the case. Wait, mind that exactly. This is the kind of outcomes-based decision making that conservatives have continually derided as “activist.” When the Right doesn't like the decisions of the political branches, then they routinely turn to the courts for relief – even if that means overturning an election. What makes an “activist” court? I assume it can be found in the number of times the court overturns the political branches. Say what you will about the Warren Court, none of the justices who voted in the majority on Miranda thought the suspect should go free, but that it was the only meaningful remedy to the abuse of process in that case. But, the justices who populate the right-wing decisions of the Roberts Court do think the outcomes are correct, not just the process. Alito said it all during his shockingly disrespectful display at the president's state of the union address: Citizens United is correct because money doesn't color politics. Really? This from yet another out of touch judge whose political experience consists solely of attending meetings of the Federalist Society. But that's another issue – the isolation of the justices from reality which calls for members with more practical and political experience. If such a re-evaluation of qualifications for the Court was ever needed, it was demonstrated by how ignorant about real-world politics Justice Alito really is for all his fancy degrees.
So, the Right is okay with an activist court...as long as it is a right-wing Court. What should the president do? Well, he should stack the Court. Why not? “They” do it all the time; even when “we” have the votes (another problem for another discussion). Despite the argument made here over whether the Court should be activist or not, the problem of ideological balance is not abstract - it is a real one. The president needs to appoint more judges whose disposition and experience balances those of the judiciary he inherited. And his party has to take a tough stand on this and do what needs to be done to seat new judges at the District and Appellate levels - even if that means eliminating the filibuster for court appointments. But, political activists cannot settle for a balanced judiciary. The problems of allowing and letting the courts decide political matters has consequences beyond the matters litigated in specific cases.
But, the truth is that we should be relying on organizing to make law through political change, not on the protection of the courts. Even when the courts are trying to do the right thing, they can get it wrong. Why? Because lawyers and judges never have to deal with the consequences of judicial policymaking. It's the nature of the process, not a condemnation of the people involved. Lawyers advocate single-mindedly on behalf of the narrow interests of their clients. The courtroom provides a forum for essentially two sides to even very complex issues. The judge then lays down an order that can impact public policy with no real understanding of that order's impact, and certainly with no accountability for the decision. But, there are important questions in setting public policy. How do we pay for something and where do we get the revenue? How do we get public support for something? How do we really get the job done effectively? The judicial way doesn't care about these things, which - in the end - can be a program's undoing. And even if it does not undo the program, the lack of attention to creating and maintaining public support will undermine public confidence in government programs in general. That's why using the courts should not be a political strategy. In the end, it will undermine not promote public confidence in government.
