The Minority Court
Edward Lazarus argues in the Washington Post -- to simplify it -- that progressives must just accept the fact that the Supreme Court won't advance their agenda, on the grounds that in history it normally hasn't.
Certainly, the Supreme Court since Marbury has often exercised its power to frustrate legislative action, and occasionally -- but much more rarely -- has checked the President. Routinely, however, it has thwarted, twisted, and turned around regulatory actions. Perhaps in this latter area more than any, the Supreme Court has little to brag about for its existence, but in the other areas as well it's hard to chalk up to the Court's credit over the history of the Republic much of positive record. Generally, it has gotten in the way of progress. If that's what it means not to be progressive, then we have to agree with Lazarus.
So exactly why do we put up with this? If the Supreme Court is not going to enunciate, generation after generation, a basic set of rights, what good is it? If it doesn't represent a place where the little guy can get justice, then what good is it? We hardly need another institution where individual freedom is trampled on. We certainly need no reinforcement for the power of vested interest. And we don't need an overseer of limited capacity and overwrought opinions to tell expert agencies, much less overburdened legislatures, what to do.
After a term like this one, the Chief Justice would do well to talk to the American people about what he's doing and why he's doing it. Of course, nothing like that will happen; he will go off to some long vacation somewhere and exercise the special privilege of explaining nothing to anyone. Why is this acceptable? Even the Fed Chair, who has a vastly more arcane and arguably important job, has to report to Congress twice a year and is often in the public explaining what he intends and is trying to accomplish.
Almost everything about the Supreme Court's traditions, not to mention its actions, seems increasingly anachronistic. Why do they wear robes? Who else wears such garments? Why don't they all feel the need to talk -- surely Justice Thomas doesn't think he's helping America by his silence, and the others don't help matters by making such an enormous deal out of their weirdly coded speaking. Why are they so obscure and often arrogant in their language? Is this what they were trained to do, or have they expanded on this trait only after getting lifetime appointments?
In a world where there is everywhere a great drive against elitism, secrecy, and hieratic structures of all kinds, the Supreme Court runs the risk of simply missing the cultural boat and being left on the shore of the past. Already the Executive Branch apparently does not obey all legislative decrees; what if the Supreme Court discovered that it is so out of touch that folks just ignored it? I don't mean that school districts will flout its ruling integration, but then again I do mean that few, if any, actually involved in public education can have much respect for what the Court has ruled. And after disrespect comes....something worse.
For each of the rulings of this strange, out-of-date Court, where the Chief Justice has obviously gone back on his words to Congress and shown massive contempt for legislation and previous rulings, there is a price to pay. Stare decisis is not just a principle; it is a means to legitimacy which this Court has eschewed. Perhaps with experience even this rash, brilliant, and naive Chief Justice will learn something about limits and respect, but he's playing with a potent batch of chemicals in a culture that he is plainly not connected very closely to and it all may produce in time a very toxic political reaction.
In a way, I suppose, this radical right turn for the Court was foreordained by Bush vs. Gore not only in that the case produced the President who appointed the crucial combination of Roberts and Alito but also in that the case was so ungrounded in law and precedent that it in effect announced that majority votes and not reason determined outcomes. Oddly, George Bush might well have won without that case, but the case sadly led to an era of lawlesss and unreasonable behavior in Washington that will, I fear, have effects for long into the future. This last Court term, with the remarkable ruling that separate and unequal is the law of the land in education, is one such effect.
Reed:
What a great post!
July 1, 2007 6:39 PM | Reply | Permalink
I doubt the Supremes have much to worry about. As Reed himself points out, except for a few short periods in its history SCOTUS has acted as an enthusiastic supporter of vested property interests and an enemy of social change.
And after 200 years and more of such behavior it's still here!
July 1, 2007 8:01 PM | Reply | Permalink
I'm not sure what you think Roberts and his ilk have to be concerned about. You're very vague but the fact is America has already seen things like hired guns (Blackwater) shooting people indiscriminately and the 82nd Airborne threatening Americans on America's streets - New Orleans. And New Orleans was a monumental failure of the very people that you somehow feel should be concerned.
Anyway, another commentator here, Nathan Newman, said all this and more and more clearly and more starkly some time ago at his own blog. It was just before the formation of the gang of 14, those wonderful "bipartisan" compromisers who destroyed the use of the filibuster, but only for Democrats. Republicans can filibuster everything and obstruct everything not to their liking. The majority of the minority block America from righting their wrongs. Newman at the time said that the filibuster should be allowed to die. It was far more a tool for oppression and against progress than it ever was for people's rights. He said the same about the "Supreme Court." He was right on both matters.
It's ironic that you use vague terms about concerns Roberts should have. Do you remember at the time of the Terri Schiavo fiasco, prominent Republicans were warning "activist judges" that their lives might be in danger? I think Tom DeLay suggested that impeachment was an option and that the Congress had the power of the purse and could defund the judiciary. But you can only suggest that the people might get upset with the court's corporate, elitist, hateful and bluntly sarcastic rulings.
We have criminals running America. The executive branch is boldly criminal. Their Department of Justice, the nation's policing body, is a farce excepting that there's nothing to laugh about ignoring crimes and framing the innocent. War crimes have been excused - with the help of Democrats. Our chief "justices" go on vacations with prominent people they are about to pass judgment over and they refuse to excuse themselves from those cases. No appearance of impropriety. They give "the finger" to any that suggest otherwise.
Who is going to do what to these people? The Democrats? If the Democrats had any real intention of doing something to reclaim America from these criminals they'd be doing what the Republicans were doing during the Clinton impeachment process. They warned that the end of the Clinton presidency wouldn't mean the end of investigations and prosecutions. Why don't the Democrats take that stance and tell the people that if given full and effective control of Congress in 2008 they'll thoroughly investigate and prosecute all those involved in criminal activities during this administration? And they'd make sure that destruction of evidence and federal property would also be prosecuted and punished severely. I think it's obvious why the Democrats don't make those sort of statements. Because they have no intention of doing anything like that.
They are as representative of the average American as George W. Bush is.
July 1, 2007 9:58 PM | Reply | Permalink
Mr. Hundt
We're going to make it costly for the REPUBLIKLAN members of the Supreme Court to lean too much in the direction of corporations and social authoritarians.
We're going to go after the companies that give money to the REPUBLIKLAN party and pressure them to stop their party from ruining America, using the Supreme Court and until 2009, the pResidency.
You can change America today! Go to http://dmocrats.org and look for the statement with the title Send this letter to congress today!
July 1, 2007 11:32 PM | Reply | Permalink
Amos Anan is right, but when did the Democrats or any majority party represent the average American?
The notion that the Democrats are an opposition party is laughable. The party's "leadership" are notable for their round heels.
Imagine Gore had won enough votes in Florida, or for that matter New Hampshire, to win the presidency. Now imagine the fate of his first nominee to the supreme court.
The Republicans would have torn him or her to shreds. They would never have consented to the first person nominated. It wouldn't have mattered who the nominee was, they would have shot it down to shoot it down.
That's how they play. The Democrats, in contrast, go along. That's how they play.
How that affects the average American never enters their minds.
July 2, 2007 12:12 AM | Reply | Permalink
Duncan C. Kinder
http://www.billingsgatereport.net
With all due respects, liberals should have considered this a generation ago. Instead, they chose to believe that the judiciary somehow was an intrinsically liberal institution and that those who questioned judicial power were racist or otherwise malign.
There is of course, no objective reason to suppose that just because an individual wears a robe or wields a gavel that he therefore subscribes to one political ideology and not another. Moreover, there have been decades of history where the courts have been conservative, not liberal. For every Brown v. Board there has been a Plessy. One of the big problems with criticizing the Roberts court for its disregard of Warren precedent is that the Warren court itself had been equally cavalier with its own prior precedent. Precedent, smecedent.
I hate to say I told you so, but in the exercise of ordinary care, liberals should have considered that a rightward shift in the judiciary was a possibility.
July 2, 2007 7:11 AM | Reply | Permalink
I'd suggest replacing "liberals" with "centrists".
July 2, 2007 8:16 AM | Reply | Permalink
I recently picked up an old Ken Burns program on the Statue of Liberty, a gift from the French, once champions of liberty, equality and fraternity to America to, in a sense, carry the torch.
Mario Cuomo was asked to define 'liberty.' He called it the 'essence' of America adding that the further we get from our 'essence' the more trouble we get into. Would that our nine Justices knew what is obvious to Cuomo and the rest of us.
July 2, 2007 9:25 AM | Reply | Permalink
Scalia rationalizing torture by refering to "Jack Bauer" on a FOX action/drama seemed like the bottom of the bottom - FOX's LITERAL fiction is now some kind of important precedent or 'evidence' that torture is both 'beneficial' and defensible?
July 2, 2007 10:00 AM | Reply | Permalink
Because we respect the Constitution. Because of the separation of powers. You know, checks and balances and stuff. If liberals attempt to undermine the power of the Supreme Court then they undermine the power of judicial review, which in turn undermines the power of the rule of law. This is a wet dream for Bush conservatives over the long haul. Imagine, for a second, the current crop of Republicans unconstrained by the courts and unrestrained by the rule of law. And yet, this is precisely what you advocate in the above post, Reed. And you know what? It's creepy and I wish you'd stop.
I'm not going to defend the Roberts court. But it's downright scary when liberals start directing broadsides at the basic structure of our constitutional government. Suggesting that we should disregard or discard judicial review because we don't happen to like the current members of the court is sickeningly similar to the Bush Administration's attempt to discard the Geneva Conventions because they are "quaint." Who cares about the constitution when the system produces results we don't like, I guess.
If you take away the independence of the Supreme Court, you undermine the power of the entire judiciary. If the Supreme Court is illegitimate, then what are the Federal Appeals Courts? And the Federal District Courts, for that matter? Or what about your State Supreme Court? Or your local district court? It's all of a piece. You dismantle the top, you dismantle the whole thing - because the only authority any court has to go on is the authority passed down by superior courts. Take out the top court and they are all illegitimate. Is that really a place we want to go?
Judges wear robes, Reed. Everywhere. In courtrooms across America. Every day. Should we ignore them too?
Look, I think Scalia is a fraud. I think Roberts is a scary, dangerous guy. I think Thomas is right wing freak. But that doesn't change the fact that you have just written an extremely creepy article that I normally expect from the populist right wingers who have been attacking "activist judges" for the last two decades. Are you going to argue that the President should overrule Congress just because there's a Democrat in the Oval Office and a Republican majority on Capital Hill? That's essentially what you are doing here.
What does this mean, exactly? After making the case that we shouldn't respect the court for most of your column, it sounds an awful lot like a threat.
Are you suggesting that we should haul Supreme Court justices before Congress to justify their rulings? To let Senators attack them? Perhaps you want to give the Senate the power to remove justices for their more unpopular rulings? Certainly someone of your stature knows that the Chief Justice has limited power on the Court - and that he alone cannot "explain" the decisions of the other 8 justices. So what exactly do you suggest? Bring them all before Congress for a good grilling?
Frankly, I'm disgusted. Glenn Greenwald should come over from the Book Club and give you a thorough tongue lashing for this post.
July 2, 2007 4:28 PM | Reply | Permalink
Why would any liberal respect this court? It was not appointed to pursue justice. It was appointeed to pursue a divisive, far right ideology. No one justice or not is entitled to respect. Respect is earned.
I applaud Reed for getting out of the ivory tower.
July 2, 2007 4:57 PM | Reply | Permalink
The Constitution does not speak to, much less require, most of the traditions with which time has invested the Supreme Court. Stripes on the robes? A refusal to discuss matters in public but a willingness to go on private junkets with political figures --- that's not in the Constitution, but is just another example of rust on the boat. It's always a good idea to take a fresh look at what just doesn't seem to work so well.
July 2, 2007 5:25 PM | Reply | Permalink