The Eminent Tribunal

After the Supreme Court’s infamous Dred Scott decision, which ruled that slaves were property, not persons, and effectively made slavery legal in the territories, Lincoln declared in his first Inaugural Address that

The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

In a letter written in 1820 to William Jarvis, Thomas Jefferson expressed his deep reservations about judicial review,

You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Jefferson and Lincoln understood the dangers of a Supreme Court intent on activism. For those who think the latest outrage by the Roberts Court is an aberration, I suggest reading Packing the Court, the latest book by Pulitzer Prize winning historian, James MacGregor Burns.

Burns argues that, with the exception of the Warren Court, the Supreme Court’s historic role has been “as a choke point for progressive reform,” and that in “the Gilded Age of the late 19th century” and the “Gilded Age at the turn of the 21st,” the justices “fiercely protected the rights and liberties of the minority of the powerful and the propertied.” The American people, he concludes, “cannot expect leadership from unelected and unaccountable politicians in robes.”

Burns sees the Roberts Court for what it is, but, of course, no one listens to historians.

Friday afternoon, while listening to NPR on my car radio, I heard David Brooks explain to concerned (liberal) listeners that the Supreme Court ruling in Citizens United v. Federal Election Commission was nothing to be concerned about because corporations are as likely to back Democrats as Republicans. Later that evening, while watching PBS NEWSHOUR, here, again, was Brooks telling us,

I do not necessarily think it is great for the Republican Party and terrible for the Democratic Party, because when you look at who is willing to subsidize corporations and erect regulatory barriers, both parties actually do that. So, I think it will have bad effects, but not necessarily partisan effects.

I can’t wait to read David Brook’s column in the New York Times so I can find out what he really thinks about this landmark court decision.

Why is David Brooks, the “go-to” conservative pundet of the main stream media?  Because his analysis is always framed around partisan politics. The Citizens United ruling will have “bad effects”, but not partisan effects, so no need to worry.

Fortunately, there are some in the media who, like Burns, understand the import of those “bad effects.”  For example, the editorial in The New York Times The Court’s Blow to Democracy does a nice job of putting the decision into historical perspective.

With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.

Ruth Marcus explains the “shoddy scholarship” that was used to argue the “brazen power grab”. This by the same court that brought you Bush vs Gore.

In opening the floodgates for corporate money in election campaigns, the Supreme Court did not simply engage in a brazen power grab. It did so in an opinion stunning in its intellectual dishonesty.
Many of those commenting on the decision in Citizens United v. Federal Election Commission have focused on the power-grab part.
I agree with them. It was unnecessary for the court to go so far when there were several less-radical grounds available. It was audacious to seize the opportunity to overrule precedents when the parties had not pressed this issue and the lower courts had not considered it. It was the height of activism to usurp the judgments of Congress and state legislatures about how best to prevent corruption of the political process. As bad as the court’s activism, though, was its shoddy scholarship.

In The Washington Post, Michael Waldman considers the implications of the Court’s power grab,

The Supreme Court on Thursday upended a century’s worth of campaign finance law. An immediate question raised by the Citizens United v. Federal Election Commission decision is whether this will flood elections with suddenly legal corporate money. Less understood but deeply significant is what this shows about the court and its relationship to the Obama administration and Congress.

This far-reaching ruling augurs a significant power struggle. For the first time since 1937, an increasingly conservative federal judiciary faces a progressive and activist Congress and president. Until now, it was unclear how the justices would accommodate the new political alignment. The Citizens United decision suggests an assertive court, eager to overturn precedent, looming as a challenge to President Obama’s agenda.

Unfortunately, there doesn’t seem to be any obvious recourse to the activism of the Bush/Roberts Court. Burns anticipated a “coming crisis” where an “conservative, obstructionist” court would confront a liberal President and Congress. His radical suggestion is that the president should “announce flatly that he or she would not accept the Supreme Court’s verdicts” unless the people pass a constitutional amendment explicitly authorizing the justices to strike down unconstitutional laws.

Even though Burns makes a convincing case that “Judicial Review” was not the intent of the authors of the Constitution and is, in fact, unconstitutional, it would be political suicide for Obama, or any other contemporary President, to challenge the Court in that manner.

FDR, frustrated by the “nine old men” on the conservative court blocking New Deal legislation tried to pass legislation reforming the court. The political backlash was such that he ended up withdrawing the bill before it went down to overwhelming defeat.


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