2016 Election, Supreme Court

The Real Activist Judges

supreme+courtIs It Time to Rein In the Court?

The esteemed American historian James MacGregor Burns published an important and fiercely argued little book last year that received too little attention.

Burns, an historian of “political power” – his books about FDR’s presidency are still among the best accounts of Roosevelt’s accumulation and use of presidential power – turned his attention in his latest work – Packing the Court – to the awesome power of the unelected members of the United States Supreme Court. Jeffery Rosen, writing in the Washington Post, called the book “readable and accessible,” but also a polemic, albeit an “elegant and interestingly radical” one.

Burns offered a bold and far-reaching critique of the Court as having historically and unconstitutionally overstepped its authority and he suggested that before long some president – or the people – will need to act to re-define the power of the unelected third branch of government. The Court, Burns contends, has historically been populated with “partisan politicos” who have made the judiciary both unstable and unrepresentative of the American people.

Burns, as Emily Bazelon noted in an excellent summary of the book at Slate, goes all the way back in his critique to the landmark case Marbury v. Madison. If you remember your history, Marbury was the case, with John Marshall as Chief Justice, that forever established the notion that the Supreme Court has the power – no where found in the Constitution – to review and rule unconstitutional acts of Congress. From such power, Burns argues, much trouble has come to the Republic.

Citizens United v. FEC

I’ve been thinking about Burns’ arguments in light of the extremely controversial recent case involving campaign finance limits. In that case, Citizens United v. FEC, the court effectively overturned a 100 year old ban on corporate and labor expenditures in federal elections and likely impacted existing laws in more than half the states.

[Montana, with a colorful and corrupt history of corporate political influence, is one state where existing law is potentially impacted by the Citizens ruling. The state’s former top election official, Bob Brown, offered his take recently at NewWest.net.]

Some of the more compelling analysis I’ve read of the landmark Citizens case comes from Ben W. Heineman who once served in senior legal and public affairs roles for corporate giant GE. Heineman makes three key points about the Citizens case, but each also relates to a larger argument about the current Roberts Court and its approach to the Constitution and Congress.

First, Heineman says, the Court imposed in the Citizens decision its own “values” as opposed to the values of the elected and openly political branches of the government. The Court, he argues, did not need to render such a sweeping decision, but by the narrowest of margins, did just that.

Similarly, the Court swept aside a Teddy Roosevelt-era law that denied corporations the same rights as individuals. Again, a value judgment, in Heineman’s view. And, finally, the Court completely disregarded the “political record” concerning the issue of corporate political spending by denying that Congress – in a whole series of political findings over a long period of time – had demonstrated a compelling public interest in prohibiting unlimited corporate money in politics.

Whatever your feelings about corporate “free speech,” which is how the Roberts Court presented the issues, the Citizens case should, once and for all, put a torch to the claim that “conservative justices” bring to the bench a bias to defer to the political branches of the government. With one sweeping ruling, the Roberts Court, or at least five members, overturned decades of precedent, ignored the policy prescriptions of Congress and issued a broad, far-reaching decision where a narrow, limited ruling was not only possible but desirable. This is not the behavior of a “conservative” court.

An Activist Court

One of the great political fictions of the last 25 years years is that “activist” judges – these judges are always from left of center politically – have molded the law and the Constitution in ways not keeping with the intent of the Founders. In fact, over the last 25 years, it has been the conservative majorities on the Rehnquist and now the Robert Court that have been the “activists.” There is more to come.

In his book, Professor Burns offers the radical prescription that some future president – or current president – should simply defy the Court when it overturns a policy position that has been fought out, compromised and agreed to by the political branches of the government. I’m not sure I would go so far, since I still wonder what might have happened, for example, had Richard Nixon defied the Court during Watergate or had Al Gore not quietly stepped aside when the Court made George W. Bush president in 2001.

Still, the Citizens case and what comes along next from the Roberts Court may make such a challenge less and less unthinkable.

President Obama was sharply critical of the Citizens decision and was criticized for his criticism. Still, Obama’s critique was really quite measured and he may find that he’ll have many more occasions to speak out about rulings from this Court. In criticizing the Court, he was also in good company. Presidents have done so repeatedly in our history.

Franklin Roosevelt found that taking on the Court, as he did in 1937, was a short-term political loser, but more because of how he managed the criticism as opposed to the substance of his complaints. Arguably FDR’s assault on the Court helped moderate its conservatism in the late 1930’s. The other Roosevelt, Teddy, repeatedly lashed out at the Court early in the century, once complaining of “flagrant wrongs” committed by judges.

A wise man once told me the Founders had made one fundamental mistake: they turned one whole branch of government over to lawyers.

Another made the observation that all judges, by their nature, are political and that doesn’t change once the black robe is draped over the shoulders of a former political operative. Judges almost always receive appointments, and, at the federal level, lifetime tenure, by virtue of a political background or a political sponsor. What they do with the power that they alone define is also political.

More Power to the Court

In the poisonous and largely paralyzed world that is Washington these days, the Roberts Court may have the clearest agenda in town and an agenda that can actually be implemented. Whether the country likes it over time is another matter.

Fundamentally, the power of the Supreme Court and the role these largely untouchable justices play is a matter of separation of powers. James MacGregor Burns would argue that the Court has amassed power all out of proportion to what our system envisions or can tolerate over the long term.

A president can influence the Court with appointments and the Congress must advise and consent, but something else is also required if our system is to “balance.” The Court must self regulate; it must restrain its own activist and value driven impulses. The corporate campaign finance case is an indication that the current majority is unwilling, or unable, to impose that burden on itself. Despite what Chief Justice Roberts said during his confirmation hearing about seeing the role of a judge as an umpire merely calling “balls and strikes,” these umpires don’t seem to be defining the strike zone as much as tearing up the rulebook.

We’ll also see whether the country – from the political right to the political left – really tolerates that attitude over time. Neither conservatives nor liberals should be very comfortable with the direction we seem to be headed.

2016 Election, Supreme Court

The President and the Supremes

untitledCriticising 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.

2016 Election, Supreme Court

Now That Was Quick

SutherlandThe Fastest Confirmation…

George Sutherland is the only person from the state of Utah to ever serve on the United States Supreme Court. Nominated by President Warren Harding in 1922, Sutherland still holds the record for the fastest confirmation in court history. The entire process – nomination, no hearings and Senate confirmation – took one day.

After being defeated in his bid for a third term in the United States Senate, Sutherland established a Washington, D.C. law practice and developed a friendship with Harding. That close relationship lead to his court appointment.

Sutherland spent 16 years on the high court faithfully opposing almost all expansion of government power. He became the intellectual leader of the “four horsemen,” the conservative bloc on the court that before 1937 rejected much of Franklin Roosevelt’s New Deal legislation. Sutherland retired in 1938.

Supreme Court confirmations have certainly changed since 1922. New justice Sonia Sotomayor’s nomination was announced by President Obama on May 26. She was confirmed today. By my count her confirmation process lasted 72 days.

By the standards of the modern Senate confirmation ordeal the Sotomayor process was speedy, but no threat to George Sutherland’s record. Like Joe DiMaggio’s record of hitting safely in 56 consecutive major league baseball games, the Utahan’s record will never be broken.

Borah, Supreme Court

Supreme Appointments…Then and Now

BORAHWelcome to The Johnson Post…

I’ll hope from time to time to offer some historical context and perspective on Idaho and regional issues and personalities.

Please let me know what you think and check back often.

No better place to begin than the current Supreme Court confirmation story and a little historical context concerning a great Senator from Idaho – William E. Borah.

It appears all but certain that Judge Sonia Sotomayor will be confirmed as only the third woman and the first Hispanic to sit on the Supreme Court of the United States. Even given the attention paid to the Judge’s “wise Latina” comment, the hearings lacked much drama or controversy. As Frank Rich noted (http://www.nytimes.com/opinion) the drama “tanked faster” than Fred Thompson’s presidential campaign.

Prior to the onset of the modern Supreme Court confirmation ritual, the advise and consent responsibilities of the United States Senate were usually handled in a much quieter way than we have come to expect. Drama was the exception to be sure.

Borah: A Champion of Quality Nominees

For example, one of Idaho’s greatest political figures, Senator William E. Borah, had a major and frequently behind the scenes hand in influencing a number of Supreme Court appointments during his 30-plus years in the Senate. Two appointments he championed in the 1930’s rank today as among the greatest Supreme Court justices ever.

For more on Borah: http://bioguide.congress.gov/scripts/biodisplay.pl?index=B000634

In 1932, as a member of the Senate Judiciary Committee, Borah lobbied hard for the nomination of the chief judge of the New York Court of Appeals Benjamin N. Cardozo. Cardozo was a brilliant legal scholar and widely respected leader of what was at the time the most important state court in the country. President Herbert Hoover was initially reluctant to name Cardozo, in part, because New York was already represented on the court and Cardozo, like Associate Justice Louis Brandeis, was Jewish. (Some Hoover advisors apparently counseled against two Jews on the court.)

For more on Cardozo: http://www.oyez.org/justices/benjamin_n_cardozo

None of these calculations mattered in the least to Borah who went to the White House to personally make his case for Cardozo to the president. “Cardozo belongs to Idaho as much as he does to New York,” Borah told Hoover.

Hoover listened to the sale pitch and handed the Idaho Senator a list of names he had under consideration for the high court. Borah read the list and took note of Cardozo’s name at the very bottom. “Your list is alright,” Borah said, “but you handed it to me upside down.”

Hoover always maintained that he alone came to the decision to appoint the eminent Cardozo to the Supreme Court, but its hard to believe that the forceful advocacy of the powerful chairman of the Senate Foreign Relations Committee hadn’t carried a little weight. By most every standard, Benjamin N. Cardozo ranks as one of the greatest justices in the history of the Supreme Court.

A few years later, in 1937, Borah staunchly backed the Supreme Court confirmation of the Democratic Senator from Alabama Hugo L. Black.

For more on Black: http://www.oyez.org/justices/hugo_l_black

Franklin D. Roosevelt had appointed Black, a down-the-line New Dealer, in the immediate wake of his failed plan to enlarge the Supreme Court. Black was one of only 20 senators who held out to the very end in favor of Roosevelt’s “court packing.” Many Senators, Democrats included, saw Black as less than qualified – he’d been a police court judge in Birmingham – and deemed his nomination an effort by FDR to rub salt in the court packing wounds. Borah saw something else in Black’s qualifications and took to the Senate floor to defend the Democrat against allegations that Black had not really disavowed his one-time membership in the Ku Klux Klan. One wag said, as Black headed for the Supreme Court, that “he didn’t need new robes, he could just dye the old ones.”

Hugo Black survived that early controversy and over 34 distinguished years on the Supreme Court gained a reputation as a great defender of the First Amendment.

Borah was a power in the Senate at a time when interest group politics barely, if at all, entered the debate around a nominee for the Supreme Court. When Borah helped influence the nomination and confirmation of two of the great justices of the 20th Century, judicial philosophy, while important, was relatively less important than judicial scholarship or raw intelligence.

The Supreme Court confirmation process was a good deal different in the 1930’s than what we saw unfold between Judiciary Committee Senators and Judge Sotomayor. It’s worth remembering that the quieter, more low key process typical in Borah’s era did produce a Cardozo and a Black.

Not a bad outcome.