Is the Supreme Court about to declare war on the twentieth century?
This is the larger question raised by an escalating series of decisions, starting with the recent Obamacare case. In designing its sweeping reform, Congress relied on 70 years of case-law, emerging from the New Deal, that upheld its sweeping regulatory authority under the commerce clause. Yet Chief Justice Roberts, as well as four other conservatives, dramatically challenged this basic element of the New Deal settlement. While Roberts made a last minute doctrinal swerve on another issue to uphold the statute, this should not blind us to the dangers that lie ahead. While his act of statesmanship prevented a head-on confrontation between the presidency and the Court, the conservative majority has issued a fundamental challenge to a basic premise of twentieth century constitutionalism.
A similar challenge will arise this year as the Court weighs the fate of the Voting Rights Act. "We Shall Overcome," Lyndon Johnson famously declared in introducing the legislation to Congress in 1965. But it took more than this rhetorical gesture to transform the dreams of Martin Luther King into the law of the land. Johnson had to win the support of a broad bipartisan coalition, including Republican leaders like Everett Dirksen, for a Voting Rights Act that would actually generate real-world results when so many previous statutes had failed. Their success of 1965 has been repeatedly reaffirmed by the political branches -- most recently, when President Bush renewed the law for 25 years after it was passed 390 to 33 in the House and unanimously in the Senate. Nevertheless, the Court's conservative five-judge majority may well strike down key statutory provisions as unconstitutional.
Thaddeus Steven and other leaders of Reconstruction will start spinning in their graves if the Roberts Court bases its decision on the "original understanding" of the Fifteenth Amendment. While other legal scholars may leap to the Court's defense, there is one thing they can't deny. In 1965, America's leaders heard all these conservative arguments from southern senators during their lengthy filibuster against the bill. If the Roberts Court now endorses some version of these claims about "states rights," it will be repudiating the civil rights generation's understanding of the Fifteenth Amendment. Is it right for five judges to repudiate the hard-won insights of the twentieth century?
This question will arise, in a different form, when the Supreme Court reviews a remarkable decision handed down last week by the DC Circuit.
The three-judge panel imposed new and severe limitations on the president's power to make interim appointments to the executive branch. Throughout the twentieth century, politically hostile Senates have repeatedly tried to undermine sitting presidents by refusing to confirm key nominations. Both parties have played this game, but the problem has gotten worse now that "silent filibusters," and similar devices, enable a small partisan minority to kill appointments. Without any weapons to combat this abuse, presidents can't fulfill their constitutional duty "to take care that the laws be faithfully executed."
In 1921, Attorney General Harry Daugherty responded to this emerging problem by interpreting the Constitution to allow the president to make interim appointments while the Senate goes on vacation. Over the next ninety years, this practice has evolved in complex ways. Presidents have learned interim appointments come at the price of alienating powerful Senators. But senators have learned that extreme partisanship will only provoke presidential assertions of their appointment power.
This evolving pattern of checks-and-balances raises important constitutional issues. But the Court of Appeals was not interested in resolving them. Instead, it repudiated the entire system for failing to conform to the original understanding of 1789. As a matter of history, this radical reinterpretation fails to do justice to the Madisonian principles inspiring the document as a whole. But once again, this is not my crucial point: If the Supreme Court allows this recent judgment to stand, it will be casting away the century-long effort by many thoughtful Senators and Presidents to make the Madisonian system work in a sensible fashion.
The Court's war on the twentieth century is not inevitable. Perhaps the Chief Justice, or one of his fellow conservatives, will execute statesmanlike swerves in upcoming cases. But if not, a runaway Roberts Court will intensify the institutional stand-offs and unnecessary crises that are undermining the confidence of ordinary Americans in their government.
Bruce Ackerman is Sterling professor of law and political science at Yale, and the author of the multivolume series, We the People.
What’s more, and what's especially ironic, is that the principal use to which Section 5 is put today is forcing jurisdictions to create and maintain racially segregated and gerrymandered voting districts – which is completely at odds with the original ideals of the Civil Rights Movement.
Here's why Section 5 of the Voting Rights Act is bad policy, outdated, unconstitutional, and ought to be struck down by the Supreme Court:
http://www.pacificlegal.org/opeds/Overturn-unconstitutional-Voting-Rights-Act
Instead of amending the Constitution per Article V, the Left did an end run by having the courts re-interpret key constitutional provisions in ways that did violence to the intent of those who drafted and ratified the document. (See Wickard v. Filburn, holding that a farmer who grows crops for personal consumption is engaged in interstate commerce.)
A general consensus emerged during the mid-20th century that the commerce power of the Federal government needed to be expanded to cope with the rise of great corporations. That consensus should have been harnessed into an amendment campaign that clearly defined the scope of any expansion.
Had proper methods been followed, then there would be no scope for the Supreme Court to roll back the scope of Federal commerce power.
First, Ackerman claims “Congress relied on 70 years of case-law, emerging from the New Deal, that upheld its sweeping regulatory authority under the commerce clause”. It is true that the Court has diluted what constitutes “interstate” or “commerce” for the purposes of the Clause, but it has never claimed that the Commerce Clause gives Congress the authority to mandate commerce (buy an insurance policy) where the commerce didn’t previously exist.
Second, Ackerman implies the entire VRA is under review; it isn’t, only the so-called pre-clearance section (section 5). Section 5 is an exception to normal constitutional jurisprudence. Normally the federal government can’t tell the states how to run their elections. Section 5 was upheld in 1966 only because of a pattern of exceptional cirmstances of constitutional evasion by the designated states. There has been no significant factual update on the supposed offending states in nearly 40 years i.e. there is no current evidence of the exceptional conditions of constitutional evasion which warranted the exception in the first place.
Finally, Ackerman complains about the Appellate Court’s overturning Obama’s recess appointments to the NLRB. It is true that the Court went farther than they had to (e.g. ruling recess appointments could only occur during intersession recesses) but the underlying decision will almost certainly be upheld. In fact, reversing the DC Court's decision would go against history, since no Court has ever said that the President has the authority to declare Congress in recess.
-- Jefferson Memorial, Washington DC
Newt Gingrich actually disbanded the Scientific Advisors to Congress back in the "90's. There is a great book which every American should read (at least those with an education above the 5th grade level) called The Republican War on Science.
SImple truth for the GOP- if you don't like what groups tell you, disparage them and get rid of them. Then appoint unqualified people to the committees in Congress.
Truth be damned.
Would you be surprised to find out that in 4 years of the Roberts Court (08 thru 11) an average of 66% of cases were decided with 2 dissenting votes or less and that fully 29% were unanimous? How about the "controversial 5/4 decisions? Only 24% of cases were decided with a 5 to 4 vote.
24% of cases decided with a 5/4 vote is in my opinion too many still, but the fact that 76% of cases are decided with a 6/3 or larger majority vote indicates that the court is not completely political. The thing that worries me is that on politically charged cases, too often the court splits along political lines. So many pundits and commentators labeled Roberts as "courageous" for upholding obamacare, while those exact same people would have demanded his head on a platter if he had voted the other way. That is political terrorism. For Mr Ackerman to accuse the Court of intending a "war on the twentieth century" because he does not agree with their decisions is again a form of terrorism. The better discussion would be to ask why our system has allowed Justices to be appointed that HAVE any political leanings. Their job is jurisprudence, not politics.
As a British observer, especially through the HuffPost, I see increasing stagnation and paralysis in your national political system. Historically, nations decline and fall when they do not have dynamic and pro-active government. Does anyone in the US have the vision, will or ability to change?
And very quickly je showed that he I'd eager to overturn ancient laws, such as the Citizens Uniteed ruling that overturned 100 years of settled law.
Now that Roberts has confirmed that he brazenly lied to The People to be confirmed, it should be no surprise that Roberts will zealously overturn the entire 20th century.
According to the Roberts Court, the very existence of the Middle Class is unconstitutional!
It depends on what your definition of "is" is.
Therefore ---He did not lie.
We're a divided nation, likely headed for a fall. I wonder if anyone has thought about the potential loss in all social programs if a fall were to take place. The left keeps pressing yet doesn't realize many aren't going to take it anymore. When the divide comes, the New Deal and all the other progressive dreams will evaporate. Who will support them if the nation physically divides?
Don't think it's possible? Think about 1776 (England/colonies) or 1865 (north/south). This time it will be left vs. right politically.
State's rights boil down to localizing power of families and political hacks to wield exclusive domain and retribution within their sphere without any tempering influence of national, communal law and govenance. Freedoms, duties, and law must apply universally in a country. If not we may as well draw the lines in the sand and prepare for another civil war.
Lately I have been thinking in general "states rights" might allow new progressive ideas to begin but they also make old ideas stay and last longer? I agreee with you comment on how states rights localize the power of fewer people in each state over the Nation's majority. State's rights is a two edged sword, faster and slower progression?
Gay marriage began with a few states that might not have happened under a Federal System? Perhaps any hope of changing some of these basic parts are all but impossible. Can't imagine any state allowing the law of the United States to take precidence in ALL cases except through the Amendments.
Why have "Amendments" instead of just one law for all the states? Is the United States unusual in this? I simply find myself hoping Obama will "stack" SCOTUS to the left. Not good in the large picture but at least it helps US progress beyond things like "a well ordered militia", LOL
That 2nd Amendment overlooked electricity, paved roads with cars and cell phones and so much more. Some other countries seem to have simpler and more effective constitutions because they are "modern" like Canada's?
F & F'd