“Scarier Than His Friend Ted Cruz”: Why Right-Wingers Want Sen. Mike Lee On SCOTUS
The Republican battle to make Barack Obama’s Supreme Court nominee Merrick Garland go away, and the efforts to pin down GOP presidential candidates on pre-vetted lists of potential Supremes, have all led to increased speculation about the next justice. At present, there’s a major boom among conservatives for Senator Mike Lee of Utah.
Today the Washington Post‘s James Hohmann offers a rundown on all the reasons Lee is enjoying this attention. For one thing, the Utah senator has long been considered Ted Cruz’s best friend in the upper chamber, so if Cruz is elected, it’s a bit of a no-brainer if Lee wants a robe. For another, Lee would probably have an easier time getting confirmed by his colleagues in the clubby Senate than some law professor or circuit-court judge, and might even avoid a Democratic filibuster (assuming Republicans haven’t already killed the SCOTUS filibuster via the “nuclear option”).
But one of the two most important reasons for the Lee boom is buried pretty far down in the story:
Lee is just 44. That means he could squeeze four or more decades out of a lifetime appointment.
Yep. If nominated next year for the Scalia seat, Lee would be the youngest nominee since Clarence Thomas, who has now been on the Court for nearly a quarter of a century, with many years of extremism probably still ahead of him. Before Thomas, you have to go all the way back to Bill Richardson’s favorite justice, Whizzer White, in 1962, to find a nominee as young as Lee would be. As you may have noticed, life expectancy has been going up for Americans in recent decades. For conservatives seeking a permanent grip on the Court and on constitutional law, someone Lee’s age is money.
But the second reason Lee would be significant is only hinted at by Hohmann in the praise lavished on the solon by the Heritage Foundation and longtime right-wing legal thinker Senator Jeff Sessions (the two most likely sources for SCOTUS advice for Donald Trump, as it happens). Lee’s not just any old “constitutional conservative”; he’s a leading exponent of what is called the Lochner school of constitutional theory, named after the early-twentieth-century decision that was the basis for SCOTUS invalidation of New Deal legislation until the threat of court-packing and a strategic flip-flop resolved what had become a major constitutional crisis.
Lee has, on occasion, suggested that child labor laws, Social Security, and Medicare are unconstitutional, because they breach the eternal limits on federal power sketched out by the Founders. Like most Lochnerians, he views the constitution and the courts as designed to keep democratic majorities from stepping on the God-given personal and property rights of individuals and corporations alike. So it’s no surprise he’s been a bitter critic of the deferential view towards Congress expressed by Chief Justice Roberts in the decision that saved Obamacare.
In effect, Mike Lee could become a more influential successor to Clarence Thomas — after overlapping with Thomas on the Court for a decade or two. If Democratic senators have a problem with that possibility, they might want to begin making noises about it so that at least the supposition that Lee is pretty easily confirmable may be called into question.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, April 7, 2016
“The Supreme Court Fight Is About Democracy”: Conservatives Want To Bring Back Pre-New Deal Jurisprudence
There’s a reason beyond garden-variety partisanship that Senate Republicans resist even holding hearings on President Obama’s nomination of Merrick Garland to the Supreme Court. Their gambit evades a full and open debate over the conservative judicial agenda, which is to use the high court in an aggressive and political way to reverse decades of progressive legislation.
The central irony here: The very conservatives who use “judicial activism” as a battering ram against liberals are now the aggressive judicial activists. It’s precisely because Garland’s record reveals him to be a devout practitioner of judicial restraint that an intellectually frank dialogue over his nomination would be so dangerous to the right. It would expose the radicalism of their jurisprudence.
Some conservatives are quite open about this, and few have been more candid than George F. Will, my Post colleague. To begin with, he deserves credit for making clear in his most recent column that Garland really is a stout advocate of judicial “deference” and for pointing out the absurdity of the Republicans’ refusal to take up his nomination. And in the past, Will has been unusually direct in defining the stakes in our battles over the role of the courts.
In a 2014 column aptly headlined “Judicial activism isn’t a bad thing,” he wrote: “Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.”
Will’s attack on “a spurious majoritarian ethic,” of course, is another way of criticizing the workings of democracy. Where does this lead?
It leads to the Citizens United decision (which Will supports as emphatically as I oppose it) that overthrew decades of precedent and a century of practice involving limits on the power of big money in politics; to the Supreme Court’s evisceration of the Voting Rights Act; and to the scrapping of all manner of legislation aimed at protecting workers’ rights, the environment and consumers. Historically, it’s an approach that, more often than not, leans toward employers over employees, creditors over debtors, property owners over less affluent citizens, and corporations over individuals.
We know what this approach looks like because it’s the one the court pursued for decades before the New Deal. It is this pre-New Deal jurisprudence that conservatives want to bring back. Some conservatives have talked openly about the “Constitution in Exile,” referring to the way our founding document was once read to overturn many New Deal and Progressive Era laws. Starting in the late 1930s, the court moved to a different approach that gave Congress broad latitude to legislate on matters related to social justice and economics and saw its task as intervening primarily on behalf of individual rights.
Will’s outright embrace of “judicial activism” has brought him some critics on the right. One of them is Ed Whelan, president of the Ethics and Public Policy Center and a leading defender of the Senate Republicans’ current strategy. “Most contemporary conservative proponents of judicial restraint,” Whelan has written, “are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question.”
Whelan added that his approach would, like Will’s, allow judges to “enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth.” But it would also “prevent judges from inventing rights and powers that are not in the Constitution.”
Here’s my translation of Whelan: He’s instructing Will to notice how originalism — the conservative theory that insists we can apply the original meaning of the Constitution’s words and the Founders’ intentions with some ease — leaves judges with plenty of power to toss out progressive laws. At the same time, it gives conservatives grounds to oppose liberals on such issues as abortion and gay marriage.
I’ll stipulate that there are some legitimate conservative arguments against liberals on their own forms of social-issue activism. But I’d insist that we will understand this court battle better if we pay attention to Will’s straightforward language: Through originalism and other doctrines, conservatives have embraced an astonishingly aggressive approach to judging. It allows them to reach outcomes through the courts that they cannot achieve through the democratic process.
At heart, this is a debate over how we define democracy. It’s also a struggle over whether government will be able to serve as a countervailing force to concentrated economic power.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, March 20, 2016
“Flood The Government With Lawsuits”: Charles Murray And The Right’s Plan To Subvert Democracy
Early last week, a watchdog website hosted by People for the American Way, a liberal advocacy group, reacted with alarm to a political-legal strategy outlined in a new book by the conservative social theorist Charles Murray. Normally when liberals assail Murray it’s in connection with his infamous tome The Bell Curve, which made him synonymous with race science—specifically the presumption that I.Q. differences between whites and blacks can be partially attributed to genetics.
Twenty years later, Murray has moved on to a more direct form of conservative activism, and taken a critical look at the mixed record of various expensive right-wing efforts to roll back the New Deal consensus. As you might expect from someone as deterministic as the author of The Bell Curve, Murray has concluded that the conservative movement’s shortcomings must be explained via reference to its political DNA and the political DNA of its competitors. But rather than reason much as he did two decades ago that these shortcomings reflect the intrinsic weakness of his ideology, he has concluded instead that the system is rigged against it. Appealing as populist libertarian ideas are to him and his cohort, or as they should be in the abstract, they simply can’t compete in a democratic environment with downwardly distributive progressivism. For the right to gain advantage, it will have to change terrain.
In his latest book, as PFAW explains, Murray hopes “to have one or a few anti-government billionaires kick in to create ‘The Madison Fund,’ a legal group that would flood the government with lawsuits challenging the enforcement of regulations they deem unnecessary.”
This is an apt description of Murray’s strategy, but the strategy itself happens to be the least revealing or alarming in his book. By The People is not first and foremost a book about billionaires subverting federal regulations, or beleaguered citizens seeking redress with the help of libertarian philanthropists.
It is instead about the impossible odds conservatives face if they hope to implement a libertarian agenda, and thus about the need for conservatives to think more devilishly about how to subvert democratic and quasi-democratic processes. The book’s title—By The People—has been held up for ridicule for exemplifying the emptiness of the populist appellations conservatives typically apply to the handiwork of wealthy, self-interested ideologues. But perhaps the joke’s on us, and Murray’s simply using a different form of the word “by” than Abraham Lincoln had in mind when he wrote the Gettysburg Address.
The subtext of Murray’s argument is that principled conservatives can only set back liberalism with rearguard action, and that even then, they can hope only for modest victories. Remarkably, the 100-page buildup to the strategy that has PFAW so concerned reads less like a battle cry than like a manifesto of hopelessness—or perhaps like a letter of surrender to the left. Murray tells his fans that “a restoration of limited government is not going to happen by winning presidential elections and getting the right people appointed to the Supreme Court”—asking them to accept, as a premise, that the billions of dollars conservative activists have spent trying to advance the cause through the White House have been wasted, or at least could have been better spent.
Like an adolescent Ayn Rand devotee, Murray can’t quite come to grips with the unattractiveness of his ideology. He is perfectly aware that the policies he opposes and the regulations he wants to overwhelm with litigation could theoretically be overturned by Congress and a conservative president. But to him, the unlikelihood of that outcome isn’t attributable to the normative weaknesses of his worldview but to a playing field that’s tilted against it. His ideas falter not because the people don’t support them, but because a series of ingredients, including—in his words!—the democratization of the House of Representatives, have corrupted the political system systemically. To the extent that “the people” he claims to be speaking for don’t rise up to challenge this corruption, it’s because they run up against what Murray calls “the fundamental theorem of democratic politics”—the fact that “people who receive government benefits tend to vote for people who support those benefits.”
“As of 2012,” Murray laments, “approximately half of all Americans received such benefits.” And more than one in three receive such generous benefits (either through welfare or retirement programs) that “the continued security of those programs is likely to be near the top of the recipients’ political calculations.”
Conservatism has been checkmated, not by a superior player, but by an unscrupulous one. Under the circumstances, Murray sees no choice but to move the game from the chessboard into the wild.
In truth, there’s nothing particularly novel or disquieting about the scheme Murray’s drawn up, except insofar as the procedural extremism conservatives have deployed in the Obama era is alarming in general. From the moment conservatives lost the White House six and a half years ago, they’ve been asking judges to do on their behalf what they’ve been unable to accomplish in the democratic branches. A few weeks from now, the Supreme Court will issue a ruling in a case that was devised as part of an explicit strategy to hobble the Affordable Care Act through the judiciary, knowing that the legislature wouldn’t be able to do it for them.
This strategy has been intermittently successful, but has also run aground when its objectives—such as paralyzing the administrative state by flooding the courts with litigation—are unsupportable or too nakedly political. Notwithstanding Murray’s continued influence over conservative thinking, including favorable mentions just this month by GOP presidential candidates Jeb Bush and Rand Paul, his latest big idea will run into a feasibility problem: even if it were attempted, it wouldn’t work particularly well.
What’s refreshing about By The People is that it blows right past the typical pretense that conservatives are, humbly and alone, defending the constitution and the rule of law, except to the extent that he believes the country went off the constitutional rails in systemic fashion several decades ago. He happily admits that his means here are subversive, undemocratic and of questionable legality. His substantive aims are not so different from those of, for instance, National Review writers Reihan Salam and Ramesh Ponnuru, who have outlined an agenda for the GOP Congress that includes unwinding the cooperative federalist models, responsible for so much of the regulatory and redistributive status quo Murray detests, and subjecting the regulatory regime in the crosshairs of his litigation strategy to legislative approval. But what Murray sees that others don’t, or won’t admit, is that these goals can be achieved only by short-circuiting the normal policy-making process.
It’s a shame in a way, because notwithstanding his Romney-esque conception of the political economy of modern welfare states, Murray’s overall critique of the American political system has a lot of merit to it. Were Murray’s central purpose to make Congress and the executive branch more responsive to the public, irrespective of the public’s political disposition, he’d find a lot of support in unexpected places. But that’s not his central purpose, and for good reason. As infuriating and frustrating as the U.S. government’s many corruptions are, they do not explain why conservatives have failed to upend enforcement of environmental, anti-discrimination and workplace-safety regulations. That’s why his preferred instrument of reform isn’t the ballot box, but the court system, and that in turn gives away the game. The former helps ensure that policy reforms have public sanction. The latter makes it possible to sneak ones that don’t By The People.
By: Brian Beutler, The New Republic, May 18, 2015
“There’s No Line Between Law And Politics”: A Reminder; Our Justices Are Politicians In Robes
Linda Greenhouse, the longtime Supreme Court reporter for the New York Times, declared surrender Thursday. For decades, she argued that the Court was a higher form of government, engaged in Law, not just politics. Now she has decided that the justices are politicians in robes.
The straw that broke her faith? The Court’s decision to review King v. Burwell, a case confirming that Obamacare subsidies can go to people in insurance exchanges that the federal government sets up in states that haven’t created the exchanges themselves. Without those subsidies, the worst-case scenario has Obamacare entering a fiscal death spiral. The best case is that it would be another body blow to a law that is managing to work despite design flaws and relentless opposition.
Greenhouse is absolutely right that the Court’s hasty grab at a hot-button case it doesn’t need to decide is unseemly and partisan-feeling. And as Greenhouse is a very smart and sincere person who loves the Court and the law, her crie de coeur is striking.
But the Supreme Court has been political since the day it was born. It’s just that the way it is political today is a symptom of the nastiness and futility of our politics.
Cast an eye over the history of the Supreme Court, and you will see no golden age of apolitical judging. Today’s conservative judicial activists—especially the older generation, such as Justices Scalia and Thomas—came onto the Court in reaction against an earlier generation of liberal activists. The liberals had established abortion rights, extended constitutional equality to women, increased the rights of criminal defendants, and briefly declared the death penalty unconstitutional.
The conservatives saw all of this as blatantly political activism. They sought control of the Court to restore the Constitution and protect law from politics—at least as they understood it. Now those conservative restorationists are the partisan activists who have broken Linda Greenhouse’s faith.
And what about those liberal activists who made the young Scalia and Thomas so indignant? They were the children of another revolution. Their predecessors—and some of them—also came onto the Court to restore the Constitution and save the law from politics. Only the activists they overthrew were conservatives: anti-New Deal justices who upheld “economy liberty” and “limited government” by striking down minimum-wage laws and the first wave of Franklin Roosevelt’s legislation.
And so it goes, back through judicial struggles over Reconstruction, slavery, and the now-esoteric bloodletting of the early nineteenth century, which pivoted on questions like the constitutionality of the national bank. Someone has always been trying to save the law from politics and restore the Constitution. But when you look at it clearly, saving the law from politics turns out to be a thoroughly political job.
First you have to convince people to accept your version of the boundary between law and politics. Then you have to get judges onto the bench who agree with you. The history of law is the history of politics, and vice-versa.
So why do so many smart people believe in the difference between law and politics? Why do they sincerely try to restore, or preserve, the line between the two, and get heartbroken when the line fails?
It’s not just naivete. The special role of the American courts, particularly the Supreme Court, is to administer principles that have won so decisively in politics that they get taken off the table.
The triumph of the New Deal brought in a generation of judges who implemented new principles—above all, the legitimacy of the regulatory and welfare state—across the legal system as the shared framework of a national consensus. The era of the Civil Rights Movement and the Great Society led a generation of elite liberals, including many of the current Justices, to embrace broader principles of personal liberty and equality, which they saw as perfecting the American social compact. They were busily implementing these in cases like Roe v. Wade when a right-wing insurgency took them by surprise.
The fight that started then has only become more pitched. There’s no line between law and politics now because our politics is too divided to generate one. We cannot begin to agree which issues should be taken off the table and handed to courts.
The conservatives on the Supreme Court are aligned, intellectually, politically, and institutionally, with lawyers and activists who want to dismantle much of the regulatory and welfare state and stop or reverse the extension of civil rights and liberties.
The liberals are aligned with those who have opposite aims: preserving and extending civil rights and upholding the regulatory state as a legitimate aspect of government. The country is divided, sharply and unrelentingly, over the same questions. What one side tries to take off the table, to turn from “politics” into “law,” the other side is always trying to grab back. With every grab, the idea that law and politics are separate becomes harder for anyone to believe.
Politics gives law its premises, its basic commitments. Law has its own kind of integrity, based in applying principles consistently, integrating competing goals, giving the same words the same meaning in different places and explaining why not when it doesn’t. If you have worked closely with judges who practice this craft, you know it isn’t just politics, any more than architecture is just drawing.
Law, in this sense, is essential work, but its fabric gets torn when the premises change—like ripping a weaving project suddenly into a new kind of garment. It changed in the Civil Rights era, and in the New Deal. And then it stabilized. Now it is not stabilizing, and the constant contest at all levels, from basic premises to craft, means that, increasingly, everything feels partisan. All that is solid melts into fetid air.
We’ve been denied what Americans seem perennially to wish for—a Supreme Court that is better than we are—surer, clearer, wiser and more unified. It turns out that was really a wish to be a better version of ourselves. On the one hand, it’s good to be rid of the illusion and stand on the real ground of democratic politics. On the other hand, what broken and disappointing ground it is.
By: Jedediah Purdy, Robinson O. Everett Professor of Law at the Duke University School of Law; The Daily Beast, November 13, 2014
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