“A Revolutionary Committee”: Time For Some Candor From The Supreme Court
In most of the cases it decides, the Supreme Court is what it presents itself as: a court of law. The justices apply preexisting rules and standards set forth, for example, in the Constitution and statutes passed by Congress, to a dizzying array of human and institutional behaviors.
But in many highly contested cases, especially those involving the definition of broad-based rights, the Supreme Court is only slightly more a court of law than the House of Representatives or the Senate. Here the justices are often covertly and ashamedly quasi-legislative, actually deciding what sort of a society they wish to call into being, designating winners and losers on the basis what they want or hope will be best.
A powerful mythology keeps the Supreme Court and its constituencies from acknowledging this. Sore losers often claim they have been cheated by life-tenured federal judges, but such complaints are promptly forgotten because today’s angry critic is tomorrow’s triumphant victor, suddenly extolling the fairness of the justices.
Judges, lawyers and the interested public usually end up colluding in promoting the idea that when the Supreme Court decides that corporations have the same speech rights as natural persons, or that there need not be a recount in a contested presidential election, or that sodomy cannot be a crime, or that racial segregation in education is not only abhorrent but a violation of the Constitution, the rule of law, not the rule of men, is in operation.
The core notion we cling to is basic civics. Though chosen democratically, the justices are not elected. The information they receive and their legitimacy are rightly circumscribed, the former by laws that surround the way decisions are reached, and the latter by their unaccountability. It is feared that if the Supreme Court talked about what serious observers concede, that many major rulings are a result of value choices made in a legal context rather than on strict application of a legal rule or precedent, the ensuing contradictions would undermine the public’s acceptance of its decisions.
Justice Sonia Sotomayer came as close as justices of the Supreme Court ever do to crossing this line when she pointed out the glaring inconsistency between the court’s assurances in the Hobby Lobby contraception case and a decision granting Wheaton College an injunction four days later. Despite becoming instantly famous, her blunt language — “Those who are bound by our decisions usually believe they can take us at our word. Not so today.” — stops far short of what an elected politician might say in a similar situation.
Deeply embedded in the discourse that follows decisions in epochal cases is talk about the way the Supreme Court’s reasoning connects to its conclusions and the practical consequences of the ruling. All can condemn or praise the work of the Supreme Court, but only entrenched partisans are likely to claim that the decision is purely political.
What Supreme Court majorities never admit is that the past is so contingent, and the choices made by other governmental actors so unclear, that nothing is left for the Supreme Court to do but what it thinks best under the circumstances. The thought is that it would be institutionally damaging to admit that the justices just choose the reasonable and wise course, in effect conceding that they truly act as a “revolutionary committee,” as A.A. Berle once memorably put it. Given such an admission, would the next voice say, “Why not leave these choices to the elected?”
But maintaining the myth is costly. Because both unhappy losers and Supreme Court analysts know that all too often the threads of the law said to dispose of a case really stand only as a thin cover of justification (rather as an honest search for solution), the result is large-scale cynicism. Law students learn early in their first year the difference between the language of opinions and what really cuts the mustard. Practicing lawyers know well the difference between rhetoric and reality.
This gap between actual and masked reasons for a decision muddies the waters and inhibits healthy debate. And it is unnecessary. Perhaps there was a time when, in order to respect the law, the public had to believe that it was found somewhere outside our judges, a “brooding omnipresence,” as it was called, but no longer. Given the massive exposure in the media to what passes for law making, people today are not quite so naïve.
More importantly, we need the justices to do more of what they do well. A deliberative process responsive to objective evidence and narrowed to real controversies is a paramount governmental function. There is probably no better way to meet the need to manage the existential controversies of a complex society than a judicial process that presents the true bases of decisions. What is no longer sustainable is the illusion that in these major cases the justices are merely the mouthpiece for decisions made by Congress or settled long ago by James Madison and his colleagues.
By: Michael Meltsner, Matthews Distinguished Professor of Law at Northeastern University School of Law; The Hoffington Post Blog, July 25, 2014
“King Newt”: Why Not Just Call For Martial Law And Be Done With It?
There has been no shortage of wacky ideas from the Republican candidates, but Newt Gingrich’s attacks on the judiciary are truly far out on the lunatic fringe of right-wing politics.
At first he confined himself to merely railing against the independence of the judiciary, without which due process simply cannot exist. Recently, he’s started talking about arresting judges who issue rulings he doesn’t like. Intimidating judges used to be a criminal offense. Now it’s a campaign plank and a Sunday morning sound bite.
On the CBS News program “Face the Nation” yesterday, Mr. Gingrich said Congress should compel judges to testify about any decision that annoys the majority party on Capitol Hill. He said he would send U.S. Marshals to arrest them if they did not willingly come to testify. (Marshals, for what it’s worth, are charged with protecting federal judges, who get hundreds of death threats a year.) Mr. Gingrich is not the first politician to say shockingly inappropriate things about federal judges. In 2005, Tom DeLay, who was the Republican House Majority Leader, threatened retribution against the judges who ruled against his wishes in the Terri Schiavo case.
And that same year, John Cornyn, a Texas Republican, attributed episodes of courthouse violence to distress over judges who make “political decisions yet are unaccountable to the public.” This was shortly after a career criminal tried to shoot his way out of an Atlanta trial, killing the judge in the process. And after a deranged man murdered a Chicago judge’s mother and husband because the judge had dismissed his lawsuit.
But Mr. Gingrich takes the attack on the judiciary farther than any other national figure I’ve heard, at least since the Jim Crow days. He’s actually gone so far as to suggest Congress impeach uncooperative judges. Michael Mukasey, the former attorney general who served under George W. Bush, called Mr. Gingrich proposals “dangerous, ridiculous, totally irresponsible, outrageous, off the wall.”
Dangerous and irresponsible is right, for many reasons—but I’ll just give you two. One is that Mr. Gingrich’s proposal opens the door to Congress firing and hiring judges each time power changes hands between the political parties. Judges have lifetime terms to protect them from exactly this kind of pressure. Second, it would effectively eliminate the role of the Supreme Court as the ultimate arbiter of constitutionality.
Mr. Gingrich has referred several times to Thomas Jefferson’s elimination of federal judgeships at the turn of the 19th century. He presents that as an uncontroversial move, when in fact it was part of a highly partisan attempt to rescind his predecessor’s judicial appointments. He’s also fond of saying that the Supreme Court’s power of judicial review, established during Jefferson’s presidency with the seminal case Marbury v. Madison, has been “grossly overstated.”
That statement alone should turnoff primary voters. Marbury v. Madison was a founding decision for a fledgling democracy that had shed its blood to get away from a law that was subject to the will and whim of a political figure—the King of England.
By: Andrew Rosenthal, The New York Times, December 19,2011
Newt Gingrich And His “Rock, Paper, Scissors” Constitution
The closer Newt Gingrich gets to the Republican nomination for president, the more unhinged become his attacks on the independence of the federal judiciary. In early October, when Gingrich was nowhere in the polls, he ginned up a patently unconstitutionalargument for subpoenaing judges to come before Congress to justify and explain what Gingrich considers their “radical” decisions. “The spectacle would be like a dog walking on its hind legs,” said Bruce Fein, the respected conservative attorney and former Reagan official, when asked about Gingrich’s plan. “You are surprised not that it is done ineptly, but that it is attempted at all.”
Now, leading most polls, but evidently still needing his own radical pitch, Gingrich has doubled down on his crackpottery. On Sunday morning, he told Bob Schieffer of CBS News’ Face The Nation that the Capitol police, or federal marshals, could and should come and arrest those judges if they refuse to respond in person to a subpoena seeking to publicly shame them for making unpopular decisions. He also delivered this shuddering version of the Constitution, an unfamiliar Rock-Paper-Scissors version, in which the promise of separation of powers is akin to a playground game:
Here’s the key — it’s always two out of three. If the president and the congress say the court is wrong, in the end the court would lose. If the congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the congress loses. The founding fathers designed the constitution very specifically in a Montesquieu spirit of the laws to have a balance of power not to have a dictatorship by any one of the three branches.
Poof, just like that, the leading candidate’s “key” to nowhere. What Gingrich really is saying, under the guise of blasting “elitist” judges, is that the Bill of Rights would no longer be used to protect individual rights because the judges who help ensure those (often unpopular) rights can be outvoted by the White House and the Congress. In President Gingrich’s world, evidently, the Supreme Court would not have the final say on the law. The majority, as represented by the popularly elected branches, would have the ultimate vote. Not in every case, Gingrich says, just in some. Does that reassure you the way he meant it to?
Here’s the Face The Nation video from this morning in which Gingrich says “… there’s no reason the American people need to tolerate a federal judge who who is that out of sync with an entire culture….” http://www.cbsnews.com/video/watch/?id=7392048n
There are two possibilities for this level of jeremiad. Either Gingrich actually believes this nonsense, in which case he would be a constitutionally dangerous president, or he doesn’t, in which case he’s committing constitutional heresy just to win a few primary votes. Either way, it is conduct unbecoming a president. Close your eyes for a second and imagine if a Democratic candidate for the White House suggested that the judiciary be neutered by the White House and Congress; if a “liberal” running for president suggested that individual liberties and minority rights would hereafter be defined by Washington. Wouldn’t Gingrich be first in line with his pitchfork and torch?
You don’t need to be a lawyer, politician or scholar to hear the contradictions in Gingrich’s latest argument. He’s against “elitist” judges but not against the lobbyist-infused Washington insiders who would overrule them. He rails on the 9th Circuit for its Pledge of Allegiance ruling as though it were the law of the land (it is not, as your school-age child is likely to tell you). Similarly, he picks on a federal trial in judge in Texas whose school prayer ruling was almost immediately overturned on appeal. Small beer, indeed, for the monumental remedies Gingrich seeks; it’s like destroying the whole house to get rid of a few nagging flies.
“I think part of the advantage I have is that I’m not a lawyer,’ Gingrich told Schieffer. “And so as a historian, I look at the context of the judiciary and the constitution in terms of American history.” The fact that Gingrich is not a lawyer helps explain why he sounds so ignorant about the law. The fact that he is an historian helps explain why he’s hanging much of his theory on some hoary precedent involving Thomas Jefferson, the slave owner, who eliminated 18 of 35 judges back in his day. Never mind the constitutional precedent and practice of the intervening 200 years, Gingrich’s argument goes, it happened once so it should happen again.
I cited Judge Johnson above not just because his quote is a timely reminder to demagogues like Gingrich that they are often responsible for the very “activism” they decry. Judge Johnson, as a federal trial judge in Alabama from 1955-1979, essentially devoted his entire judicial life to helping to ensure that black citizens would gain the basic civil rights that governors and state legislators and the Congress and the White House would not give them. Imagine how many times Judge Johnson would have been called onto the carpet on Capitol Hill under a Gingrich Administration. On which side of that history would you want to be?
The last word goes to Fein, the proud Reaganite. On Sunday afternoon, he called Gingrich’s ideas “more pernicious to liberty than President Franklin Roosevelt’s ill-conceived and rebuked court-packing plan.” More colloquially, Fein told me in October when Gingrich first went off the rails on this issue: “This is crazy. It would bring us back to the pre-Magna Carta days… The idea that these legislators, who haven’t read the Constitution or their own statutes, are going to lecture federal judges about the law is ridiculous. It’s juvenile. It’s high school stuff.” Indeed—and thus perfect for a bumper-sticker: Your Constitution: Rock, Paper, Scissors, Newt.
By: Andrew Cohen, The Atlantic, December 18, 2011
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