We should probably get used (which does not mean lay down) to more of the same, and very likely worse to come for the foreseeable future. Anything can happen to anyone at any time, but most of the members of the Court look like they can remain there for a long time if they choose to. The right-wingers were purposely chosen in part for their youth, and only Scalia (71) and Kennedy (70) from that crowd are at all up in years. Yet they could have another twenty years on the Court at that age, and of course, even were either of them to leave now, their replacement would be a Bush appointee. Meanwhile, those progressive readers of this article who are disposed to making appeals to supernatural deities may wish to include John Paul Stevens in their prayers. He is both by far the oldest member of the Court and its most liberal. I doubt seriously he could be pried away from his position while George W. Bush is in the White House, a supreme act of patriotism for a man who might want to retire for a few final years of rest. How old is Stevens? He was appointed by Gerald Ford, a president not so many Americans could today distinguish from Millard Fillmore. He wears bow ties, okay? He’s 87. To say we’re lucky to have him is the understatement of the decade.
So the best-case scenario for progressives right now is not very good at all. It involves essential stasis, with perhaps Stevens being replaced two to five years from now by a Democratic president’s choice, if we’re moderately lucky. And unless that president is Al Gore, chances are such a replacement will be another Clintonian centrist, less progressive than Stevens, but nevertheless part of the non-troglodyte bloc. Then, of course, there is the question of whether Republican senators, assuming there are enough left after the tsunamis of 2006 and 2008 take them out, would allow even a centrist nominee, let alone a progressive, to be considered (in the Senate, sixty votes are effectively required to do anything). But even after all that, we’re still left with a largely solid regressive majority of five on the Court, continually turning the clock back to Great Grandpa’s golden years, when economic and political elites were all powerful. No more of this middle-class BS anymore. No more of this equality crap. That was all so very twentieth century.
The great ironies of all this are at least two-fold. The first is that this regressive judiciary has now only fully consolidated its power at the very moment when its core ideology is being repudiated by the public, and that repudiation is showing up powerfully nowadays in the other two branches of American government. Congressional Republicans got a "thumpin’" in 2006, and now see that 2008 looks far worse. Accordingly, they are opening up Grand Canyon-like fissures between themselves and a Republican president who is in the process of transitioning from just plain unpopular to truly despised. And yet it is this very same loser ideology which will continue to determine public policy because of lifetime appointments to the federal court system, and the very intentional program of populating it with ideological clones. It’s sort of like a latter-day version of the Boys From Brazil. Only even more fun, because these nice young fellows have control of the world’s sole superpower.
The other great irony here emerges from the first. Americans love to believe that they are proud owners of the world’s greatest democracy. But the final arbiter of much policy making in the United States is the Supreme Court, not only the least democratic of the three branches of government, but in fact almost completely non-democratic at all. Consider the present case. Policy in this country is now being decided by five individuals clothed in black robes, meeting in secret, and offering whatever explanation or criteria they choose to offer (or not) to justify their decisions. They are chosen through a process which might be described, at best, as indirectly quasi-democratic in nature. They serve for life. They cannot be removed from office except by impeachment, which almost no one considers to be justified for the crime of possessing bad judicial politics. Or even – like Scalia or Thomas – horribly bad politics. You basically have to be caught with a bag of cash or a law clerk under your robes to be impeached, and probably neither of those would actually be sufficient. And, if you think that is bad, consider this. Changing the ‘five’ in the above scenario to just one would not be an inaccurate description of our current governing arrangement. Indeed, because of existing political configurations, there is quite arguably just one person – robed in black, serving for life, chosen through a non-democratic process, unanswerable to anyone, and almost completely untouchable – who sets policy in this country. His name is Anthony Kennedy and, just about every time it counts, he is very regressive.
All of which begs some important questions about the nature of America’s form of government as construed by the Constitution and two centuries of practice. Not that any change of this magnitude is imaginable (unless, of course, the Court were liberal and Vice President Dick Cheney decided to wave his magic and seemingly endlessly potent Constitutional wand and declare it nonexistent), but it is nevertheless worth wondering at this juncture, just what is the point of the Supreme Court?
Conservatives will accuse me of being a fair-weather friend to the Court. They are actually not correct in this accusation – in fact, I’ve been wondering about this for some time now, well before the judicial coup of the regressive right was brought to fruition this year. And, of course, their hypocrisy on this score (what? – conservative hypocrisy? – the mind fairly reels!) is far more potent, if not as obvious as it should be. For decades, faced with a liberal or moderate Court, the right has been screaming its many code words for enervating the institution in any way possible. The federalism or states’ rights ploy, for example, was meant purely to relocate authority to judicial fora more conducive to regressive victories. The hysteria about ‘activist’ judges was meant to intimidate courts from modernizing backward policies in cases which came before them. The ‘respect for precedent’ rap was cut from the same cloth.
But now that the inmates have gained control of the asylum, you won’t be hearing any of those lines from the bonkers crowd anymore. Now that they own the judiciary, ‘judicial restraint’ is for sissies. (Which, by the way, is essentially what Scalia has been calling Roberts in a series of remarkable separate opinions on cases where they otherwise agree with each other on the outcome. If ever you needed an indicator of how far gone these cats are, the idea that John Roberts’ jurisprudence is insufficiently rabid to satisfy the mainstream of today’s conservative movement ought to send shivers up your spine.)
In any case, when I wonder aloud about the purpose of having a Supreme Court, it is not because my politics are now on the losing side of the Court’s majority, and my thoughts do not therefore represent a mirror image of their abandonment of the judicial restraint mantra now that they own the Court. Rather, it is a question of comparative politics and genuine constitutional engineering. As far as I can see, such a high court in a given polity could – and in our case, does – have two essential functions. One is chiefly appellate in nature. That is, the institution serves to supervise, correct and unify the application of garden variety rules of law in the practice of the lower courts. Thus, if the law of the land is that each defendant in a criminal case has the right to counsel, then there needs to be a place for an individual who believes he or she was denied that right to file an appeal. This is very basic jurisprudence – or even the administration of jurisprudence – and as such, I have no problem with a court designed to serve this function, as many do in other democracies, such as the Law Lords in the British system.
The second possible function of such a court is far more akin to actual lawmaking, or, minimally, law reversing. This capacity, which includes the power known as judicial review, makes the court an equal governing partner with the legislature, whether that is a parliament or Congress, allowing the judiciary to strike down duly enacted legislation for being unconstitutional or somehow otherwise unsuitable, according to the wisdom of the justices. This is a far more potent and robust power for any high court to possess, and most of them, in fact, do not. American democracy is rather unique in the substantial degree of legislative power vested in the courts. In most other democracies, parliament – the representative expression of the public’s political will – rules, almost or even completely unchallenged by any court. And, depending on one’s particular vision of democracy, that makes a lot of sense for reasons already discussed above. After all, if you’re going to call it a democracy, shouldn’t democratic institutions make policy, and non-democratic ones do something else?
I mostly agree with that philosophy, though there is one valid rationale I can see for allowing a non-democratic high court to possess such powers. And that is that democratic institutions can sometimes arguably be ‘too democratic’. How is that possible? Shouldn’t the will of the people be the fundamental law of the land? Yes and no. Suppose your country has as among its bedrock and constitutional principles the notions of freedom, equality and due process. Now suppose there is some out-group – blacks, Jews, gays, communists, whatever – who are in fact being subjected to a treatment that is in gross violation of these principles, but nevertheless very popular with the majority of the public. Who’s going to protect those minorities? Members of Congress? The president? Probably not, especially if they want to keep their jobs. But how about a court of jurists who are charged with acting in the name of defending just such ideas, and who are insulated from the public wrath their decisions would engender by virtue of their lifetime appointments?
Consider, for example, the case of Brown versus the Board, handed down in 1954. That was not an era that was, shall we say, particularly well known for its progressive racial attitudes in America. The controlling case to that point was Plessy versus Ferguson, which allowed for racial separation, as long as equality was maintained. Even if we leave aside the absurd contortions we have to twist ourselves into in order to find a way to describe the lot of black Americans then (or now) as remotely equal to that of whites, the Warren Court rightly figured out that separate would always be inherently unequal. Spot on they were, but to say that the Brown decision was unpopular would be a bit like describing Lebanon as unlucky. Let’s put it this way: My guess is that on any given day of any given year since 1789 no more than one out of ten Americans could name the Chief Justice of the United States Supreme Court. But after Brown, "Impeach Earl Warren" bumper stickers were commonly found in the South (and probably Boston too). I’d be pretty shocked if the Warren Court didn’t have a pretty decent prior sense of the fury their decision would precipitate. But they did it anyway, because it was the right thing to do, and because they could rest fairly well assured that neither Congress nor any president was going to sacrifice their political careers to get the job done, and thus they had to do it if it was to happen.
The Miranda or Gideon cases were similar in nature. Just as African Americans were an unloved out-group at the time, so of course, were accused criminals. Which member of Congress or executive branch official was going to go to bat for them, to make sure they got the fair legal process which was their due? Who was going to stand up for the completely just but unpopular principle of providing counsel to defendants, at taxpayer expense, or the idea of throwing out confessions given by arrestees who hadn’t been told they had the right to remain silent? If you were looking for a quicker way to commit political suicide, coming out in favor of pedophilia or Maoist revolution in the United States might have been more expeditious, but only just barely. Nobody was going to do this except those few folks insulated from the repercussions of making an unpopular but morally and Constitutionally necessary decision. And sometimes not even they would so dare – as the Court’s failure in the Korematsu case reminded interned Americans of Japanese descent during World War Two.
So, if a judiciary is going to be given such powers for purposes of protecting those who will otherwise be deprived of the life, liberty and happiness to which they are entitled, then I say, fine, let’s give them those powers. If not, however, it is a more than reasonable question to ask why they should possess that degree of authority. And, ‘just because they traditionally always have’ is really not a very decent answer. Apart from a few small matters like the tremendous inertia of tradition, the massive difficulty in making changes to the Constitution, and the complete indifference of most Americans to the issue, I would nevertheless argue that the philosophical burden for vesting these powers in the judiciary rests with those who would advocate for doing so, for the simple reason that such a choice is so profoundly anti-democratic – even when the Court is using such powers for the ‘right’ purposes. This concept is not lost on other democracies, by the way, where the American model is generally not employed. In Britain for example, Parliament is supreme. Period, full stop. No court or executive or monarch or any other actor can block the expression of the people’s will through their democratically chosen representatives sitting at Westminster. The only institution that can tell today’s parliament to stuff it is tomorrow’s parliament. That’s it. Meaning that the people, through their elected representatives, can legislate any policy they want. If you believe in democracy, that is arguably not only precisely how it should be, but perhaps the only way it can be.
So where does that leave us today? Well, Earl Warren is both literally and metaphorically long in his grave. With the occasional unexpected (by definition) exception, it has been a long time since the Supreme Court has acted as an agent of tolerance, principle and protection in America. And, as an echo of the previous epoch’s politics, the tendency will be to continue in that direction as the Robert’s Court and the rest of the federal judiciary reflect the regressive politics of the last decades, no matter that those ideas are well repudiated now.
To my mind, that is every reason to remove the power of judicial review from the courts. Maybe civics teachers across the land will feel compelled (perhaps, literally, by the same folks who compel them to teach creationist junk science) to tell their sixth-graders that the job of the courts is to ‘interpret’ the law. I can remember that notion seeming pretty weird to one sixth-grader I knew well back then (like, why couldn’t the lawmakers themselves interpret the laws they made?), and it strikes me as almost pure fiction today. You’d have to be a complete ninny to believe that what the federal appellate courts do in America today is not political, ideological or somehow above politics. I guess that’s why the reactionaries on the Court always vote together, taking the conservative side of any issue, and the non-regressives usually vote the other way, eh? I guess that’s why the regressive movement of the last several decades has made colonizing the courts job number one, at least since Roe versus Wade, huh? I don’t think so.
But nobody in America has the foggiest clue about such matters of constitutional engineering, and the ‘educational’ and political systems of the country have made sure that people are sufficiently dumbed down never to be likely to get there. So what we’re looking at in the coming decades is a replay of the residual reruns of the regressive seizure of power in the prior ones, like so much soap scum left ringing the bath tub days after its last use. This could well occur even should a very progressive Congress and president come to power, which is not as inconceivable as it might seem, thanks largely to the experience of the other alternative these last years. Imagine Congress pumping out bill after progressive bill, and the president happily signing those into law, only to have them repeatedly struck down by the Roberts (Scalia) Court. Wouldn’t that be fun?
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