As the Bush-Cheney administration enters its final 18 months, the White House is getting competition from the U.S. Supreme Court for status as greatest threat to the Constitution and the nation for which it is supposed to serve as a blueprint.
In recent weeks, the court headed by Bush-appointee John Roberts has attacked the sort of individual free speech that the Bill or Rights was written to protect while expanding the ability of corporations to warp and dominate the political debate. It has rolled back basic civil rights protections, especially in the area of public education. And it opened the way for the renewal of the sort of business combinations that the anti-trust and anti-monopoly laws of the past century were designed to prevent.
In other words, the court has gotten just about everything wrong — so wrong that its rational members have begun to express disbelief with regard to the extremism of the new activist majority.
Make no mistake: Chief Justice John Roberts and Justices Samuel Alito Jr., Antonin Scalia and Clarence Thomas are right-wing judicial activists who seek to use the court to legislate from the bench. Rather than interpreting the law, they are taking up cases with an eye toward advancing a political agenda. It is an agenda that is in conflict with established law, the will of the American people and the intentions of the founders. And when the relatively more moderate Justice Anthony Kennedy joins them to form a five-member majority on the court, Roberts and his judicial wrecking crew is free to attack the Constitution without restraint or mercy.
There is no question that the court is a reflection of the Bush-Cheney White House. The president’s appointments of Roberts and Alito have tipped the balance far to the right, making the court’s most extremist member, Scalia, a frequently definitional player.
But this court will not disband when George Bush and Dick Cheney leave Washington. Like the Iraq quagmire and the nation’s battered manufacturing sector, it is the mess that the president and vice president will leave behind. And it will continue to do damage to the Republic, as Roberts and his activist acolytes are determined to continue attacking civil rights, civil liberties and, above all, regulations on the corporate sector to which they owe their highest loyalty.
What can conscientious citizens do? First, they must recognize that the federal courts are, by design and in practice, rigidly anti-democratic institutions. Judges are not elected but appointed. And they are appointed not for terms that might make them accountable but for life. During the Progressive Era, when the anti-trust laws the court is now targeting were developed, visionary leaders such as Wisconsin Senator Robert M. La Follette, warned of the danger posed by powerful but unaccountable federal jurists who made up what progressives referred to as America’s “Judicial Oligarchy.”
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Having battled with jurists who took the side of robber barons over reformers, La Follette told the American Federation of Labor in the early 1920s, “Today the actual ruler of the American people is the Supreme Court of the United States.”
The remedy? La Follette and the more radical of his populist and progressive allies believed that federal judges should be elected — as they already were in many states. Milder reformers, such as Teddy Roosevelt, proposed establishing systems for recalling judges, or for regularly scheduled popular votes on whether appointed federal jurists should be allowed to continue in their positions.
That may sound like a radical idea. And in some senses it is. Shifting from an appointed to an elected federal judiciary would require tinkering with the Constitution. But this would not be the first time that a part of the document was altered to protect its whole – only in the latter half of the 20th century, for instance, were procedures developed for filling vice presidential vacancies.
Certainly, the notion of electing federal judges did not seem so far-fetched in the first years of the last century. Remember that, until 1913, the Senate had been an appointed body — with its members selected by state legislatures rather than voters. The 17th Amendment to the Constitution turned the Senate from an American version of the English House of Lords into a representative chamber when it established the direct election of senators. That was one of the great democratic advances in the long history of the American experiment. And it ushered in a period of economic, social and political reform, advanced by progressive senators of both major parties and the vibrant state-based third parties of the era.
La Follette, who served as one of the first of the directly-elected senators, did not believe that democracy should stop at the Capitol. When he campaigned for the presidency in 1924, he did so on a platform that promised to seek the direct election of the president, the vice president and the federal judiciary. For the senator who pledged that “the people shall rule,” reforming the Supreme Court was essential to establishing democracy. “Either the court must be the final arbiter of what the law is, or else some means must be found to correct its decisions,” he told 14,000 supporters gathered at Madison Square Garden.
His Republican opponent, Calvin Coolidge, a man more averse to democracy than any occupant of the Oval Office until the arrival of the current president, condemned La Follette for suggesting that the people ought to decide who would judge the laws of the land. “The time to stop those who would loosen and weaken the fabric of our government is before they begin,” grumbled Coolidge.
La Follette did not back down. “Always these decisions of the Court are on the side of the wealthy and powerful and against the poor and weak,” he said.
Yes, the senator admitted, there were risks in setting up a system for electing judges. They were, he said, the risks inherent in democracy. But, for the poor and the weak, La Follette argued, these risks were certainly fewer than the risks inherent in oligarchy — risks that have been well illustrated in recent weeks.
Of course, those who are enthusiastic about the current court’s politics will suggest that to propose an elected judiciary now is nothing more than an attempt to rewrite the rules by those who disagree with the federal courts — different merely in focus and tone from the ranting of conservatives about “activist judges” in eras of a more liberal judiciary. Perhaps this is the case. But a renewal of our acquaintance with La Follette’s response to flaws in the body politic, that the cure for what ails democracy is more democracy, seems less ideological or partisan than it does American.
A century after the power to elect the Senate was given to the people, it certainly seems reasonable to entertain a discussion of whether the time has come to remove additional barriers to democracy — the Electoral College, inconsistent voting systems and rules for participation in the varying states and, yes, the imposed rather than elected nature of our federal courts.
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