With the threat of the Supreme Court striking down the most important progressive domestic initiative in a generation, we should be talking about impeaching Supreme Court Justices who engage in such right-wing judicial activism.
Impeachment? Many progressives shrink back in horror at such a supposed affront to judicial independence. For an example, see Ruth Marcus's tizzy over President Obama's rather mild (and accurate) statement that unelected judges striking down such a core economic regulation would be unprecedented in the post-1930s legal environment.
But we need to be talking about impeachment if we are not to see every progressive economic regulation struck down by the courts as outside the supposed intent of the Constitution's Founders -- the regular rhetoric of those promoting rightwing legal theory.
What we have been witnessing in recent years is the rising use of anti-democratic means by corporate-backed interests to block any advance of progressive legislation.
So why talk about impeachment? Especially since it takes a two-thirds vote of the Senate, it won't happen any time soon.
Talking about impeachment, however, is a way to label this right-wing Court majority as the partisan tool of corporate right-wing interests that it has become. The Constitution says judges "shall hold their Offices during good Behaviour," so speaking of impeachment is the way to assert that using partisan judicial power to undermine health care for our nation is not proper behavior for unelected judges.
An attack on the health care reform law by what would inevitably be a narrow 5 to 4 partisan divide on the Court -- and by extension the Court reasserting its power to strike down core economic regulations -- is not a normal act of judicial review, modifying democratic governance at the margins, but the Supreme Court becoming de facto another partisan legislative body.
When Earl Warren led the Court in its Brown v. Board of Education decision in 1954, he made sure it was a 9-0 unanimous decision to make clear that such an extraordinary intervention into democratic governance reflected a nearly universal consensus in the legal world. The current Roberts Court, on the other hand, regularly hands down anti-democratic decisions based on 5-4 partisan divides, undermining any credibility that the Court speaks for beliefs with any partisan difference from other political branches.
In the very short term, talking about impeachment publicly is one way to signal to the Roberts Court majority that the legitimacy of the Supreme Court is on the line with this decision -- and it might make a swing vote like Anthony Kennedy think twice before crossing that Rubicon.
And in the longer term, talking about impeachment is also a way to prevent any adverse Court decision on Obamacare creating an ideological sense in the public that health care reform itself is somehow illegitimate. There are plenty of ways to pursue health care reform in new ways and we don't want any Court decision to chill the public debate in pursuing those alternatives.
The right-wing Court may try to strike down those alternatives but they will fear a backlash that could lead to actual impeachment if they block every democratic avenue to such a popular goal as health care reform.
Why Progressives Should Not Value Judicial Independence: But, argue the nervous liberal defenders of the courts, won't such progressive attacks undermine the courts more generally?
Quite honestly, judicial independence is quite well defended in the U.S. Constitution. As noted, tt takes a two-thirds vote of the Senate to remove a federal judge, which is almost insurmountable in our two-party system. The Justices don't need us to watch our language to remain the least accountable branch of government.
But some progressive legal scholars seem to worry that rhetorical attacks on the Court will somehow delegitimize the Court in the public mind -- as if that's a bad thing.
Here's the reality. Because of a few high-profile decisions under the Warren Court, many progressives are under the delusion that the courts are the institutional friend of civil rights and a democratic society. In fact, the courts have mostly been the enemy of democracy and liberties in this nation and served overwhelmingly as the handmaiden of corporate privilege.
In the 19th century, it was the Supreme Court that protected slaveowners from state government and congressional laws that sought to extend even the most limited protections to escaped slaves -- thereby precipitating the Civil War. Immediately after the Civil War, the Supreme Court struck down most of the federal Reconstruction laws, literally freeing terrorists in the South to murder at will. (See here for more on the post-Civil War history of the Court ushering in Jim Crow and lynching in the South.)
And far from enshrining "states' rights," the Supreme Court in the 19the century and early 20th century would strike down state law after state law that sought to limit corporate power, limit child labor or enact basic reforms like the minimum wage. Recent decades where the Court has struck down affirmative action laws, limited local environmental regulations and gutted campaign finance laws is not a deviation from the historic role of the Supreme Court but merely returning it to its normal status quo of serving elite interests.
It was the a couple of decades of the Warren Court that was the deviation -- and it did far less than most of its cheerleaders think it did. Yes, Brown v. Board was important symbolically, but most public schools were desegregated not by court order but by the 1965 Title I education law, which used the bludgeon of federal money to push forward the limited gains in integration achieved in our schools. The limited rights of the accused supposedly protected by the Warren Court actually coincided with an explosion of rising prison rolls in this country. And legal abortion had been spreading across the states before the iconic Roe v. Wade decision was decided -- and no less a scholar than current Justice Ruth Bader Ginsburg has argued that far from advancing abortion rights, the decision may have fed a backlash that undermined grassroots movements for abortion rights.
Progressives need to get over their recent attachment to the courts as an institution and recognize that unelected judges have overwhelmingly been the enemy of civil rights and economic justice in this nation.
Mounting a full-throated progressive campaign against a rightwing judicial elite ultimately complements the Occupy rhetoric against the financial and political elites protecting the interests of the 1% in our society.
Talking about impeachment is a way to pull together critiques of a Court that increasingly just protects moneyed interests in cases ranging from Citizens United to a myriad of other less-known cases that just pad the wallets of the financial elite and undermine our democracy.
We need to start talking about impeachment before the court makes democratic action on most progressive legislation impossible.
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