Criticising the Court Has a Long History
The curious ritual that has become a feature of a president’s State of the Union speech – the black robed justices of the United States Supreme Court sitting rigid, formal, unsmiling and strictly non-partisan in the front row of the House Chamber – assumed a good deal more relevance last week. President Obama looked down on the justices, at least the six who attended his speech, and let them have it over the Court’s recent decision to unshackle corporate money in American politics.
The cameras caught Justice Samuel Alito mouthing the words “not true” as Obama used the biggest stage in politics to tell the court to its many faces that it was wrong.
The encounter, if that’s indeed the right word, ginned up plenty of commentary. The reaction generally ranged from one extreme – “Obama was out of place” openly criticising the court – to the other – Alito’s reaction was only slightly less bad mannered than Rep. Joe Wilson shouting “you lie” to the president during an earlier speech on health care reform.
In truth, presidential – or for that matter legislative – criticism of the nation’s highest court is almost as old as the Republic and why shouldn’t it be? The court holds enormous sway over American life and, as we witnessed recently, the confirmation of a new justice has become the biggest vetting process in politics outside of the grueling primary gauntlet we put our would-be presidents through.
A little history.
In 1935, Franklin Roosevelt was so exasperated with the then-Supreme Court lead by Chief Justice Charles Evans Hughes that FDR spent more than an hour at a news conference berating the Court for its decision overturning most of the National Industrial Recovery Act (NRA), the centerpiece of the president’s legislative effort to combat the Great Depression. The Court ruled that the NRA had improperly attempted to regulate interstate commerce.
The White House worked differently in those days and a president’s news conference was “off the record,” meaning reporters could not quote him directly without express permission. The White House press corps was so astounded by FDR’s tirade against the Court that they badgered press secretary Steve Early until he agreed to let them use just one of FDR’s choice lines that has since gone down in history. The Court, Roosevelt said, was returning the country “to the horse and buggy era” of interstate commerce.
This was the Court that, among others, the flamboyant Louisiana Senator Huey P. Long referred to as the “nine old men.” When Long learned that the Court had finally taken up residence in its elegant new building across the street from the Capitol, and that the cost of the grandly columned structure was $9 million, he sneered, “a million dollars a piece for nine old men.”
During the Civil War, the great Lincoln assumed vast war powers and virtually ignored the Supreme Court, defying and marginalizing Chief Justice Roger Taney. Lincoln was so unconcerned about the sensitivities of the Court that while the Chief Justice was gravely ill he aggressively promised Taney’s job to his own problematic Treasury Secretary Salmon Chase.
In an earlier day, Thomas Jefferson fought openly with the Court and referred to the Constitution becoming “a mere thing of wax” in the hands of judges.
Dwight Eisenhower is remembered more and more as a “near great president,” not least for his appointments to the Supreme Court of Earl Warren and William Brennan, but he was fierce critic of the Court. Eisenhower fumed privately over the Court’s landmark Brown v. Board of Education desegregation case in 1954 and spoke bitterly of his disappointment in Warren. Ike also refused to speak out publicly in the aftermath of the Brown case, unmistakably leaving the impression that he disagreed with what is now considered one of the greatest rulings in the history of the high court.
Out of the White House in 1961, Eisenhower was asked if he made any great mistakes as president, to which he replied, “Yes, two, and both are sitting on the Supreme Court.”
In 1937, the the very eve of rolling out his unbelievably controversial plan to enlarge the Court as a means of liberalizing it, Franklin Roosevelt had seven of the nine justices to dinner at the White House. Only the president and a few of his closest aides knew that FDR was planning a direct, frontal assault on the Court by “packing” it with as many as six additional judges hand picked to do his bidding. It was widely reported at the time that the president completely enjoyed the idea of entertaining the “old men” all the while knowing he was shortly to attempt to politically cut their throats.
Presidents have been going after the Court for a long time.
In a provocative book published last year – Packing the Court – the eminent American historian James MacGregor Burns argued that we need more debate, not less, about the role the Supreme Court has assumed in American life. Burns goes so far as to argue that the Court has over two centuries grabbed power far beyond what the separation of powers and a striving for balance call for in the Constitution. In fact, Burns predicts a coming crisis in which the Supreme Court will be the centerpiece in rethinking whether the American people, through their elected representatives, or those unsmiling justices in the House Chamber will finally determine what the Constitution really says.
Without regard to that ominous prediction, a couple of facts seem obvious. The current Court is split 5-4 on many, if not most, issues fundamental to the left. At the same time, the very conservative Roberts Court, as evidenced by its most recent ruling, has turned the old argument about activist judges on its head. Should the Roberts Court willingly continue an aggressive posture, a kind of judicial activism of the right, and overturning 100 years of precedent is by any measure some type of judicial activism, it could signal many new fights over many new rulings in the years ahead.
Given this landscape, it is not a risky prediction to forecast many more rhetorical jabs directed at the Court from the White House and a lot more “not trues” floating back.
Such is our history.
Criticising the Court Has a Long History
Salinger and Zinn: American Originals…And More
J.D. Salinger (left) might have become the greatest American writer of the post-war period, but opted out of fame and as the New York Times notes became “the Garbo of letters.” Salinger died yesterday, a mystery man to the end, with his masterpiece The Catcher in the Rye rolling on and on, discovered by each new generation; immensely popular and controversial.
The leftist historian, teacher and activist Howard Zinn also died this week, content to the end to tell the American story through the eyes of “little people” he long contended had been left out of most history books. Zinn’s million-selling A People’s History was a surprise and runaway best seller; immensely popular and controversial.
Zinn shrugged off criticism that his approach to history was more polemic than fact, once telling an interviewer: “If you look at history from the perspective of the slaughtered and mutilated, it’s a different story.”
Salinger, the famous recluse, pursued his craft in just as individual a manner. His reputation established, he moved to New Hampshire to live the life his great character Holden Caulfield hoped for, building: “a little cabin somewhere with the dough I made and live there for the rest of my life,” away from “any goddam stupid conversation with anybody.”
A People’s History and The Catcher in the Rye…true American classics from two American originals.
Why Scott Brown Won…
Great piece in the Boston Globe today on why Massachusetts’ voters made the decisions they made recently; putting a Republican, Scott Brown, in the Senate for the first time since 1972. The analysis, based on Election Day polling by respected Democratic pollster Peter Hart, is worth reading in the context of the president’s State of the Union tonight. That speech, in many ways, will be read as a response to the Senate contest in the Bay State.
Here is one telling paragraph: “Still the economy, stupid. The economy, not health care, drove the vote. Among those who felt the economy was doing well, (Who are those people?) [Martha] Coakley won 52-to-43 percent. For those who said the economy was not good or poor, Brown won 56-to-39 percent.”
Those findings confirm the oldest rule in politics: when the economy is sick, politicians – particularly those seen as most in charge – get the flu.
Many Democrats would like to be able to respond to the current political turmoil by saying “we inherited all this,” but that referendum was held a year ago November. George W. Bush is a fading memory and voters are telling national Democrats one unmistakable message: “it’s the economy stupid and you guys have been in charge.”
We’ll see fairly soon, I suspect, whether anyone is really listening and, if they are, whether they can articulate a program that starts to make more sense to the worried American voter. My sense is there is political danger for anyone right now who comes across as looking less than completely serious about the economic challenge.
Links here will take you deeper into some of Hart’s polling or an interesting new survey from National Public Radio.
The Tyranny of the 24 Hour News Cycle
Barack Obama faces another huge speech this week – the State of the Union is Wednesday – so standby for the predictable narrative that the president has, pick your version, “hit a home run” or “done himself no good politically” with the high profile appearance before Congress.
Under either scenario, the buzz will dissipate quickly with the pundits and cable bloviators moving on to something else by about Thursday afternoon. Such is the nature of the 24 hour news cycle. The current White House approach to dealing with the new reality of speed, speed and change the subject – and they obviously have some work to do – is contained in a fine piece by the New Yorker’s media critic Ken Auletta. Auletta’s piece is required reading for political junkies or anyone who wants to try and understand the culture of the news business these days.
Here’s the money quote: “The news cycle is getting shorter – to the point that there is no pause, only the constancy of the Web and the endless argument of cable. This creates pressure to entertain or perish, which has fed the press’s dominant bias: not pro-liberal or pro-conservative but pro-conflict.”
The perceived need for speed has driven even the better Washington reporters to adopt a daily approach to journalism that makes all of them into 21st Century versions of the old fashioned, story-a-minute, green eyeshade wearing re-write man. In fact, NBC’s Chuck Todd tells Auletta, “we’re all wire-service reporters now.”
One telling observation in Auletta’s piece is the comment from presidential historian Michael Beschloss who recounts that when the Berlin Wall was erected in 1961 John Kennedy was on vacation. “For six days, no one pressed him hard for a reaction,” Beschloss says. Obama stayed quiet for three days following the attempted Detroit airline bombing – he was on Christmas vacation in Hawaii – and was widely attacked for his slow response.
The constant news cycle is a fact of political life. No wonder most politicians govern from a constant crouch, ready to leap this way or that in response to the latest “urgent” breaking news.
Speed kills whether you’re a mongoose taking on a cobra or a White House press secretary taking on, well, you get the analogy.
Associated Press culture writer Ted Anthony has a separate take on the impact of the 24 hour news culture and the response to the awful disaster in Haiti. With frustration mounting that relief efforts are taking too long, Anthony asks: “Are the expectations of the virtual world colliding with the reality of the physical one?”
The answer, of course, is “you betcha.” Disaster aid in the virtual world of cable news does seem too slow, even with U.S. airborne troops and Marines involved, guys who just happen to be the world’s masters at logistics and rapid deployment.
Not much wonder that the American public chaffs about the slow economic recovery, the time it takes Congress to pass a health insurance bill, or the slogging process of figuring out a new strategy in Afghanistan. These days instant gratification is just not fast enough.
A Save – Maybe – for the Human Rights Commission…and Other Odds and Ends
Some news on Friday that may give Idaho Human Rights advocates hope that the Idaho Legislature will craft a workable path forward for the 40-year-old Idaho Human Rights Commission.
The devil will be in the details, but the Commission may find a soft landing at the Idaho Department of Labor and legislators praised the efforts of Labor’s Roger Madsen for working with the Commission’s Director Pam Parks to create a sustainable budget solution. As noted here earlier, there was statewide push back to an Otter Administration plan to phase out state funding for the Commission that enforces non-discrimination laws and advocates for human and civil rights.
Long-time Coeur d’Alene human rights advocate Tony Stewart made the obvious point, if the Labor-Human Rights Commission lash-up can work it will have to ensure the Commission’s long-time independence and visibility. Stewart also points out that hate crimes and examples of racial intolerance appear to be on the rise again in Idaho. Stay tuned.
Too Big To Fail…
In the fall of 2008, after the national and world economy came within inches – or hours – of a complete financial collapse, Rep. Barney Frank, the acerbic chairman of the House Financial Services Committee, was interviewed on 60 Minutes.
“The problem in politics is this,” Frank said. “You don’t get any credit for disaster averted. Going to the voters and saying, ‘Boy, things really suck, but you know what: If it wasn’t for me, they would suck worse.’ That is not a platform on which anybody has ever gotten elected in the history of the world.”
New York Times reporter Andrew Ross Sorkin uses Frank’s quote near the end of his masterful, encyclopedic account of the financial crisis that precipitated the Great Recession. The book – Too Big To Fail – is, at the same time, a great piece of documentary reporting, a story of human folly, greed and crisis management on a vast scale, and a profoundly cautionary tale about how remarkably close the world came to what then-Treasury Secretary Henry Paulson said would be “a depression deeper than the Great Depression.”
There are few, if any heroes in Sorkin’s account – Paulson comes closest for his constant focus during the crisis and his willingness to make tough decisions quickly – and the book liberally assesses the blame.
Sorkin summed it up this way [the editorial comments are mine]: “The seeds of disaster had been planted years earlier with such measures as: the deregulation of the banks in the late 1990s [a move that received bipartisan support in Congress and endorsement from Bill Clinton], the push to increase home ownership [a Clinton and Bush legacy]; lax mortgage standards [poor business practices by many banks]; historically low interest rates, which created a liquidity bubble [part of Alan Greenspan's tenure at the Fed] and the system of Wall Street compensation that rewarded short-term risk taking [mark this down to old fashioned greed]. They all came together to create the perfect storm.”
Sorkin has written an important book. I hope it is being read in Washington.
The Rest of the Story…
Fascinating story in the Washington Post yesterday about the long-time friendship between the popular radio broadcaster Paul Harvey and the director of the FBI for most of the 20th Century J. Edgar Hoover.
The Post obtained 1,400 pages of FBI files that show that Harvey often submitted scripts to Hoover for approval and comment and the creepy FBI director showered the broadcaster with effusive praise. Perhaps the most amazing aspect of the story, and any number of other documented accounts of Hoover’s relationship with politicians and celebrities, is that the top G-man from the 1920′s to the 1970′s spent so much of his time on this kind of thing.
I have had a couple of opportunities, while doing research, to examine FBI files. There are, for example, pages of FBI reports in the Franklin Roosevelt archives at Hyde Park, New York. The files, mostly centered on FDR’s political opponents, often consist of material that reads a bit like a teenagers diary – raw gossip, material culled from widely available newspaper accounts and the musings of informants. In other words, it is mostly useless chatter and often, well, creepy seems to describe it pretty well.
I’m sure the FBI is devoting its time to more essential duties in the age of global terrorism, but some of the agency’s history – confirmed again by Paul Harvey, of all people – makes you wonder about the rest of the story.
Good day…and a good weekend.
Bipartisan Group – Business, Political, Religious Leaders – Urge Legislators to Sustain Idaho Commission
Dick Hackborn isn’t exactly a household name in his hometown of Boise, Idaho. Mention his name, however, in a room full of technology industry folks and most would quickly acknowledge that Hackborn has been one of the giants of the industry. He’s the guy who built – invented even – Hewlett Packard’s wildly successful printer business.
After nearly 50 years at H-P, while in his retirement, Hackborn served on the company’s board, including a short stint as Chairman. According to the informed financial press, Hackborn played a key role in ending Carly Fiorina’s less than spectacular tenure as H-P’s CEO.
The obvious point: Hackborn knows his way around business and, while he typically maintains a low profile in Idaho, he has always been an unflinching advocate for diversity in the work place and for human rights. When Hackborn was approached last week to sign on to an “open letter” to the Idaho Legislature urging continued funding of the state’s Human Rights Commission he immediately said yes.
The same can be said of Greg Carr, the Idaho Falls native, who made his fortune with Boston Technology and later served as chairman of Prodigy, an early global Internet provider. Carr has lived out his concern for human rights with the creation of the Carr Center for Human Rights at Harvard. His work in Africa has been featured on 60 Minutes. Carr supported creation of the Anne Frank Memorial in Boise and put up the bucks to purchase the former Aryan Nations compound near Hayden Lake, Idaho. That ground, once home to hate, the very antithesis of human rights, is now dedicated to human rights.
Carr’s name is on the “open letter” along with Dick Hackborn.
Savvy business people don’t need much prompting to make the connection between equality and diversity in the work place and business success in a global economy. Both Hackborn and Carr harbor deep commitments to human rights, but they also know that their support – Hewlett Packard has long been a leader in this area – puts out the welcome mat to a skilled, diverse work force.
Former Boise H-P executives Don Curtis and Rich Raimondi and their wives also signed the letter to the legislature.
For 40 years, the Idaho Human Rights Commission has been the focus – often thanks to the moral leadership of past directors Marilyn Shuler and Leslie Goddard and current director Pam Parks – for acting on the belief that human rights are a genuine priority in Idaho.
Unfortunately, Idaho isn’t all that far removed from the awful public image that haunted the state when the Rev. Richard Butler and his self-proclaimed Aryna Nations white supremacists gained international attention, while preaching a gospel of hate and camping out in northern Idaho.
The Twin Falls Times-News editorialized on all this yesterday. The paper noted that the white supremacists are “mostly gone now, but their stigma endures. We can see the headlines across the country now: “Idaho joins Alabama, Arkansas and Mississippi in nixing rights commission.”
Former Democratic Governors Cecil D. Andrus and John V. Evans remember those days battling the Aryan Nations, as does former GOP Lt. Governor David H. Leroy. They all signed the letter, as did more than 50 other religious, human rights, business and political leaders.
The Times-News editorial yesterday also made a point that Dick Hackborn or Greg Carr would likely embrace: “Why does [Idaho's image] matter? It matters because the standard in the private sector nowadays is zero tolerance of anything that hints of racism. Companies make decisions about whether to invest, expand or relocate expecting their employees will be treated equally under the law.”
That, in a nutshell, is the massive job of the tiny Idaho Human Rights Commission.
The Commission’s total state support is less than $600,000 – .00025 percent of the total state budget, less than 50 cents per Idahoan. A pretty good value to continue to have a daily, statewide moral and legal focus on issues that really matter to our culture and our economy.