This Wednesday, January 25, 2012 file photo shows the US Supreme Court Building in Washington. (AP Photo/J. Scott Applewhite)
Why a special issue of The Nation devoted to the Supreme Court? Because with partisan gridlock paralyzing the president and Congress, the Court has more than ever become “the decider”—the most powerful branch of government, and one at the center of a controversy whose outcome may shape the course of democracy for generations to come.
By a paradox both historical and constitutional, the political appointees on the Roberts Court will never have to answer for their decisions to voters like you and me. Nor to the president or Congress: once they are confirmed, the Supreme Court’s justices, like all federal judges, serve for life or “good Behaviour.”
The Constitution’s framers meant to secure the Court against political pressure from the electorate and arbitrary dismissal of its members from on high by presidents dissatisfied with their decisions. As the third branch of a new national government—one whose powers were to be divided to block overreach by any one of them—the Court would be equal to the executive and legislative arms, even though the president appointed its members with the concurrence of the Senate.
That changed dramatically when John Marshall became the fourth chief justice in 1801, shortly before Thomas Jefferson took office. The two brilliant men were bitter rivals, members of opposing parties. Marshall was a Federalist, Jefferson a Republican (no kin to the present GOP). So the supposedly neutral Court has been thrown since its infancy onto the partisan battleground, where it remains to this day.
In a landmark case in 1803, Marshall refused to apply a 1789 law giving Congress a power not strictly authorized in the Constitution and therefore “unconstitutional.” With that decision, the Court was no longer merely equal to the other two branches. It had become superior—the last word on how the Constitution should be interpreted—and its lifelong members would never risk their jobs, no matter how much they fell out of step with changing times and values.
Marshall served for thirty-four years, exercising deft leadership and cementing two of his most cherished concerns into constitutional law. One was the supremacy of the national government over the states; the other, a hospitality to the interests of the manufacturing, commercial and financial corporations whose wealth swelled as the country expanded. Various decisions that he handed down sheltered them from state regulation, either by invoking the clause of the Constitution that forbade impairing the obligation of contracts, or by insisting on exclusive federal primacy in regulating interstate commerce.
During the Gilded Age the identity of the justices changed, but the Court’s romance with big business flourished. Reformist efforts to reconcile democracy and industrialism were generally rebuffed. The Court endowed corporations with personhood under the Fifth and Fourteenth amendments—which guarantee the rights to liberty, property and due process of law—and interpreted the commerce clause so as to strike down legislation that tried to inflict on capitalism such “socialistic” and un-American horrors as forbidding the employment of small children in factories. The Court also looked unfavorably on limiting work hours in especially grueling or dangerous and disease-causing jobs; on breaking up the powerful trusts that steamrollered small competitors out of existence; on taxing incomes progressively; and on the right of workers to organize and strike. The Court’s mantra became “Just say no” to anything that smacked of progressive reform—including efforts to ameliorate the real-life misery of everyday people. By the turn of the twentieth century, populist and progressive forces were calling in vain for constitutional amendments or new legislation to end judicial review, but the majority on the Court remained hostile to democracy.
Even the national emergency of the Great Depression did not budge the Court’s majority, which began to invalidate the building blocks of the New Deal. But fortune and a Democratic landslide in 1936 broke the Court’s blockade. After Roosevelt tried and failed to add six extra justices, a series of resignations and deaths created vacancies that he quickly exploited. Eventually, in his twelve years in office, Roosevelt named not six but eight new justices. After almost 130 years of shielding those Roosevelt dubbed “economic royalists” from the effects of human suffering and popular discontent, the Court swung left, where it more or less stayed for some four decades, including more than twenty years of Republican administrations.
Under Chief Justice Earl Warren, an Eisenhower appointee, a shower of socially liberal decisions refreshed the roots of “liberty and justice for all”: Brown v. Board of Education, Baker v. Carr, Griswold v. Connecticut, Miranda v. Arizona, New York Times Co. v. Sullivan. These rulings in the aggregate ended segregation, decreed “one person, one vote” representation in state and federal election districts, guaranteed the right of couples to choose contraception, strengthened the rights of criminal suspects against government coercion, and shielded the freedom of the press from libel prosecutions. In the generally liberal atmosphere of the 1960s, frustrated conservatives could only grind their teeth and flaunt their opposition to changing values and mores with Impeach Earl Warren billboards and bumper stickers.
But the days of dominant social liberalism were numbered. The last important victory scored by the shrinking number of progressive Democrats in the Senate was to defeat Ronald Reagan’s nomination of Robert Bork to the Court in 1987. In his confirmation hearings, Bork proved himself a vigorous and intellectually skilled opponent of almost every one of the Court’s rights-guaranteeing decisions for the preceding fifty years. His appointment would have pushed the Court toward a resurrection of the good old days when the captains of industry ruled politics and devout practitioners of the dominant Christian orthodoxy governed the lives of others.
Reagan Republicans, skillful and abundantly financed, fought their way back from defeat. Rejecting the conservatism of Eisenhower-style Republicanism, which tended to respect the established norms of cultural tradition while seeking to serve the interests of business, they visualized an agenda for the Supreme Court of their dreams, which Jeffrey Toobin, in his 2007 book The Nine, neatly summed up: “Reverse Roe v. Wade and allow states to ban abortion. Expand executive power. End racial preferences intended to assist African Americans. Speed executions. Welcome religion into the public sphere.”
To promote that agenda, they fashioned a compelling narrative based on a judicial philosophy called “originalism” and espoused by the intellectual soulmates of Bork, whom they reinvented as a martyr to leftist extremism. The task of Supreme Court justices was to stick to the text of the Constitution as faithfully as a fundamentalist clergyman to the word of God as revealed in Scripture. The words of the founding fathers should be applied precisely as they had understood them in 1787, in order to divine their “original intent.”
The effort to find “rights” not explicitly mentioned in the Constitution in order to expedite the purposes listed in the preamble—such as promoting the general welfare and establishing justice—was, in Bork’s view, a “heresy” practiced by liberal justices trying to cram radical social programs down the nation’s gullet. Never mind that said preamble seems to define that “original intent” more clearly and eloquently than any other source; after all, the framers wrote it.
Donning the robes and language of populism, the originalists insisted that wicked liberals who “made” new constitutional law were stealing the prerogative of the people to see their will enacted into law by elected representatives. Convincing as this was to the conservative mindset, it isn’t quite that simple. The Court today is far from a collection of neutral arbiters: it is divided almost equally along partisan lines. Of the four remaining reliably liberal justices, two were named by Clinton and two by Obama. Then there are two chosen by Reagan, one by the first President Bush, and two by George W. Bush. In important cases decided five to four, it is usually the Republican-chosen quintet that provides the victory.
Of course, many decisions do not follow a precise pattern; there are shifting alliances and surprising switches. But two facts stand out. One is that the “strict construction” members seem to have no trouble with ideological inconsistency. Chief Justice Roberts, in his confirmation hearings, announced that the justices were not to be rule-makers but merely “umpires,” while neglecting to mention that, although he was not among them, the “umpires” in Bush v. Gore had called the game before it was over and awarded victory to the team they favored. Nor is it believable that justices who, like the dogmatic and authoritarian Scalia, freely admit in their opinions to a loathing of abortion or homosexuality have not let those deeply religious prejudices seep into their readings of the Constitution. Or that, when any of the justices defer to sweeping new executive powers in the presidentially launched and conducted “war on terror,” they aren’t aware that they are flatly contradicting the crystal-clear intention of the framers to avoid giving any president the authority of a monarch.
The right-wing counterrevolution promoted by Reagan set out to remake the judiciary in its own image. By now, it has almost completely succeeded. One evident proof of its achievement is the tendency of the Roberts Court to affirm the rights of property and organized wealth—especially of corporations—over the individual or the public interest in almost any contest with regulators or victims of abuse. Now, with its Citizens United decision, which virtually permits corporations to buy the government they desire through an election process incredibly and needlessly voracious for money, the Court has given a jet-powered boost to the move toward plutocratic control over our lives and fortunes.
Once again, history rhymes. One of the Court’s greatest blunders was the 1857 Dred Scott decision, which legitimized the spread of slavery through all the territories destined for future statehood, thwarting expectations that “the peculiar institution” was on a gradual road to extinction. Outrage at the prospect of permanent dominance by the Slave Power spurred the election of Abraham Lincoln and the Civil War. It is no exaggeration to say that Citizens United creates the threat of our subjugation to a Money Power, against which democracy must struggle for its very life.
This is why the arbitrary and uncontested power of the Supreme Court is the subject of this special issue of The Nation. The moral: Elections matter. Does anyone think Barry Goldwater would have chosen Thurgood Marshall for the Supreme Court? Or John Kerry, Samuel Alito?
But the battle is on many fronts, and will be won not only by voters on election day but by citizens engaged at every level of democracy and in every peaceful form of protest. The nation imagined by its founders—those authors of “We the People,” who clearly intended this experience in self-government to include the many, not just the privileged few—is under siege by extraordinary concentrations of corporate power and private wealth, aided and abetted by an autocratic judiciary. There can be only one response to this usurpation of democracy: defiance.
So read on, sign on and join the resistance.
ALSO IN THIS FORUM
William Yeomans: “How the Right Packed the Court ”
Jamie Raskin: “Citizens United and the Corporate Court ”
Dahlia Lithwick: “One Nation by and for the Corporations ”
Michael Greenberger: “The Roberts Court and Wall Street ”
Craig Becker and Judith Scott: “Isolating America’s Workers ”
Herman Schwartz: “Rewriting Antitrust Law ”
Sherrilyn Ifill: “A Court Out of Touch ”
Nan Aron: “The Way Forward ”