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Shahid Buttar

Shahid Buttar

Posted: July 30, 2008 11:56 AM

Bush v. Gore Rears Its Head: The Triumph of Politics Over Law (Part II)


Last week, The Senate Judiciary Committee held a hearing on the Supreme Court's recent decisions advancing corporate interests. Unfortunately, the politicization of the Roberts Court's jurisprudence extends well beyond cases advancing corporate power, and has polluted several areas of the law. The Court has run amok. Skewed by the appointment of its newest Justices in 2005, the institution has betrayed its institutional limits and actively championed controversial conservative political interests.

This article is the second in a series which began with The Politicization of Voting Rights. Part I argued that the Court's decision in Crawford v. Marion County (upholding an Indiana law imposing restrictions on the right to vote by adding new photo ID requirements) was jurisprudentially indefensible, a naked exercise of power by a Court that, across several contexts, appears to decide voting rights cases according to their partisan implications.

This article expands the analysis beyond voting rights, examining other recent decisions that rewrote longstanding constitutional doctrines while perpetuating racial marginalization, restricting reproductive freedom, diminishing political equality and politically entrenching established class interests. It also explores the limited comfort offered by the Court's occasional willingness to check the Executive. The Court's elevation of politics over law has eroded its own institutional legitimacy.

Part III of this series will explore the failures of traditional checks on the Court, as well as ethical lapses by some Justices, suggesting intervention by the other branches. Part IV will present a specific proposal through which Congress and the incoming Administration could balance the Court and restore the Separation of Powers.

Voting Rights and Political Participation: Reversing our Longest Constitutional Trend

Despite the changing winds of politics, the expansion of the voting franchise has been one of our most consistent trends since the birth of the Republic. Whether through judicial rulings protecting voting rights, or constitutional amendments granting them to more people, democracy in America has steadily expanded: a system that initially included only white propertyholders now reflects broad popular inclusion with affirmative prohibitions on racial or gender restrictions.[1]

On the one hand, many people (including half a million residents of the nation's capital) remain formally disenfranchised. And many problems beyond threshold participation (i.e., the narrow right to cast a ballot, regardless of whether and how it is counted) continue to plague the electoral process.

On the other hand, the march towards broader participation had long proceeded unimpeded – until the Roberts Court upheld Indiana's voter ID law this spring. As the Senate Judiciary Committee heard from Stanford law professor Pam Karlan two months ago, Crawford "may presage a repudiation of a century's worth of progress and commitment to expanding the right to vote."

Crawford was hardly the first time the Roberts Court has contrived legal rules to advance the Justices' partisan political interests. In 2006, it upheld most of the deeply controversial mid-decade redistricting in Texas masterminded by former House Majority Leader Tom Delay in League of United Latin American Citizens (LULAC) v. Perry, inviting free-for-all legislative self-entrenchment violating even the most minimal conceptions of procedural democracy.

Nor was Crawford the last such case. Only a few weeks ago, "[w]ealthy political candidates caught a break" when the Court in Davis v. FEC struck down "The Millionaire's Amendment" to the 2002 McCain-Feingold law. The law had allowed candidates for elected office to accept more money from campaign donors when confronting self-financed wealthy candidates who leverage their personal fortunes to mount political campaigns. In the decision's aftermath, wealthy candidates appear free to leverage their economic power to essentially purchase public office.

Crawford, LULAC and Davis illustrate how the Court contrives its jurisprudence in voting cases. In Crawford, the Court left Indiana's voters at the mercy of legislators willing to disenfranchise their opponents' supporters in order to entrench themselves in office. LULAC was similar, in that it allowed state legislators essentially unfettered discretion to trade regions of voters among themselves – again, for the sake of incumbent protection. But in Davis, the Court cited incumbent protection as a reason to strike down the law.

As Professor Rick Pildes explained: "[N]othing in the Constitution directly and expressly gives the Court the power to protect the process of democratic elections per se – to ensure that anti-competitive rules are not enacted – as opposed to protecting [only] the specific, enumerated, individual rights the Constitution guarantees." In Davis, "[t]he dissent, unlike the majority, stops at the individual-rights side of the analysis and essentially ignores the larger, more structural concern of whether this provision is a way for incumbents to entrench themselves." But in LULAC and Crawford, the Justices flipped positions, with the Court's moderate wing engaging in a functional, structural analysis that the conservative Davis majority rejected.[2]

The Justices' inconsistent willingness to take seriously their responsibility to protect voters from legislative self-entrenchment is problematic in the first instance. Even worse is the Court's seemingly consistent commitment to impeding democratic access and advancing plutocracy: Crawford allows state legislators to limit who may vote; LULAC allows state legislators to arbitrarily change for which particular legislative seats voters in a specific geographic area can vote; and Davis grants an enormous tactical political advantage to wealthy individuals seeking elected office.

These political process cases, taken together, confer massive privileges to conservative political parties, candidates, and the particular political interests they (and apparently at least five Justices of the Supreme Court) share.

Social and Civil Rights: Covertly Turning Back the Clock

The trend towards politicized rulings extends beyond cases challenging the fairness and legitimacy of the political process. Last year, in the hot-button Carhart and Parents Involved cases, the Court reversed two longstanding principles governing fundamental rights – while disingenuously claiming to uphold them.

Parents Involved prohibited public schools from pursuing voluntary busing in order to ensure racial integration — which Brown historically mandated over 50 years ago. While citing Brown v. Board, the Roberts Court eviscerated its holding and left Brown a doctrinally dangling shadow of its former self. As Justice Stevens wrote in Parents Involved, "the chief justice's reliance on our decision in Brown," entails "a cruel irony . . . ."

Carhart restricted reproductive freedom, in the greatest assault yet on the "undue burden" test announced in Planned Parenthood v. Casey in 1992 and the 1973 Roe v. Wade ruling that Casey once protected from outright reversal. Carhart presented essentially the same legal question as a case (involving the same plaintiff) heard by the Court only a few years earlier; the only distinction was the replacement of Justice O'Connor by Justice Alito. Disregarding the Court's recent precedent, Justice Kennedy's majority opinion curtailed reproductive rights in dramatic, drastic and controversial terms.

In each case, the Court preposterously claimed that its holdings — which contradicted the outcomes of the Brown and Casey decisions — were somehow compelled by them. While claiming to faithfully apply precedents, the Court instead flatly ignored and re-wrote them. Worse yet, the Court refused to even admit the implications of its decisions for its prior jurisprudence.

Its departure from principle and precedent did not go unnoticed.  Professor Karlan suggested that the cases "circumruled" well-established precedents because "the Court didn't outright overrule" them.  Justice Scalia himself has railed against the "faux judicial restraint" of the Roberts-led majority, which he characterizes as "judicial obfuscation.[3]

These cases represent the Court obscuring the impact of its own rulings, perhaps to avoid political critiques by observers offended by the Court's self-aggrandizement.  Were legal discourse more accessible to the lay public, the country would not stand for such intrusiveness.  Put simply, the Court appears to be leveraging the nation's lack of legal sophistication to covertly pursue an agenda that conservative legislators failed to achieve politically.

Nor were these "hot button" cases the extent of the Court's activism.  This Term, in District of Columbia v. Heller, the Justices radically rewrote the Second Amendment, accepting — for the first time in the Republic's history — a strained reading of the Constitution that effectively prohibits efforts by local governments to ensure citizen safety by prohibiting the possession of handguns. 

The ruling blatantly favors the conservative gun rights lobby and disregards the compelling
safety concerns of cities confronting violence
, in addition to centuries of established constitutional law that the decision reversed without even pretending to address.

Corporate Interests: Protecting Capital from Popular Accountability

As the Senate Judiciary Committee examined last week, other cases demonstrated the Roberts Court's extraordinary deference to corporate business interests.  Only 4 years ago, renowned conservative 7th Circuit Judge Richard Posner accused the Rehnquist Court of having grown politicized by virtue of its penchant for resolving cases with controversial social overtones, rather than the business cases that he argued should form the majority of its docket.

Perhaps in reaction to Judge Posner's scathing criticism, the Court appears to have shifted under Chief Justice Roberts. The U.S. Chamber of Commerce characterized the first Roberts Term as "our best Supreme Court term in 30 years." This Term alone, the Court heard four major cases addressing corporate interests — in all of which the Court advanced them.

Two involved access to justice, precluding entire categories of lawsuits altogether: Stoneridge Investment Partners vs. Scientific-Atlanta prevents victims of securities fraud — such as Enron shareholders — from suing third parties, such as investment banks and accountants, who helped facilitate the fraud.  Meanwhile, Riegel v. Medtronic prevents suits even in state courts concerning faulty medical devices approved by the FDA.  Both cases slam shut the courthouse doors on Americans seeking vindication from corporate abuse.

The third case may be even more galling.  It reversed part of a damages verdict imposed on Exxon, "the single most profitable company in the world," for negligence resulting in one of the most egregious single incidents of pollution in human history.  Continuing the Court's long-running agenda to curtail punitive damages, the ruling imposed unprecedented limitations that reduced Exxon's penalty to the equivalent of four days' profit.  Meanwhile, "[t]he devastation caused by the Valdez spill continues to this day."

The fourth case, Preston v. Ferrer, may ultimately affect the largest number of Americans. It effectively sealed the courthouse doors to plaintiffs subjected to pro-business arbitration, ruling that even challenges to arbitration agreements remain subject to arbitrators, rather than judges.

Ultimately, the political process cases are simply some among many examples of the Roberts Court contriving legal principles to advance a conservative political agenda.  The Court has been  equally aggressive — and ultimately political — when deciding cases implicating social rights or corporate power.

Institutional Legitimacy: Judicial Restraint and the Political Question Doctrine

Throughout its history, the Court has abstained from attempting to resolve questions outside its institutional ambit.  Marbury v. Madison, one of the Court's bedrock cases, represents an assertion of jurisprudential authority, establishing the power of judicial review that the Roberts Court wields today. 

However, recognizing that the Court lacked the power to enforce its orders, Chief Justice Marshall added a jurisdictional escape hatch: his unanimous opinion favored the Petitioner (who sought an appointment he had been unfairly denied) — but also finding that Congress exceeded its power when passing the law that conferred on the Court jurisdiction to hear the case.  Marshall's genius lies in recognizing the Court's institutional weakness and asserting its authority without actively invoking it, "not only avoid[ing] the potential embarrasment of a further snub from [President Thomas] Jefferson and  [Secretary of State James] Madison, but concomitantly affirm[ming] the Court's right to review the acts of the other branches of the government for constitutionality."

The "Political Question" doctrine reflects a similar recognition of institutional real politik. It suggests against resolving contests where any decision would erode the Court's legitimacy by appearing political, rather than principled.  In 1962, Baker v. Carr elucidated the doctrine while limiting it, holding that despite the seemingly political nature of legal challenges to legislative districts and voter representation, voters held a justiciable right to representation in the House of Representatives on a numerically equal basis as voters in other districts.  The principle was later enshrined in Reynolds v. Sims — which Chief Justice Earl Warren considered the most important decision of his storied career — as "one man, one vote."  The Justices who limited voting rights in Crawford could learn something from their predecessors who decided Reynolds.

Ultimately, the Political Question doctrine aims to defend the distinction between law (which Courts should address, given their expertise) and politics (in which judicial intervention is illegitimate since life tenure insulates judges from electoral accountability).  Put simply, "the goal of a judicial resolution is a nonpartisan decision dictated by law, not by the partisan or ideological preferences of the particular judges who happen to hear the case."

Judicial Aggrandizement vs. Democracy

In 2005, four years after installing the Bush-Cheney regime in office, the Supreme Court insulated it from popular accountability by upholding unprecedented executive secrecy in the Energy Task Force case.  The concerns raised by advocates seeking mere disclosure (of government contacts with oil & gas executives over the course of some 40 meetings that crafted the Bush Administration's energy policy) have proven prescient in the wake of debacles in Iraq and energy policy. 

But the White House weathered an absent political storm, protected by the Court's activism on its behalf.  According to Pulitzer Prize-winning journalist Charlie Savage, the Energy Task Force case presented the Bush administration's assault on the Separation of Powers with the "first battleground...the fight over whether Cheney would have to comply with open-government laws that mandated that he tell Congress and the public whom his energy task force had met with."

Some observers point to the detainee rights cases as demonstrating the Court's ongoing willingness to check executive power.  While several such cases (including Hamdi, Padilla, Hamdan and, most recently, Boumediene) have vindicated some minimal procedural rights in specific contexts, however, they offer little comfort. First, they offer insight only into Justice Kennedy's thinking, as his vote with the moderate bloc is the only margin protecting this line of cases from the politicization apparent in cases where he votes with his conservative cohort. That Justice Kennedy's deference to the executive knows some bounds is a relief, but a limited one given his participation in the various other cases championing conservative interests. Moreover, the Court's willingness to vindicate habeas corpus, a bedrock right that has stood since the 13th century, represents no triumph. The most striking facet of the Court's decisions with respect to detainee rights is that, despite vindicating so central and longstanding a principle, they command so slim a majority.

Cases citing the political question doctrine, much like Bush v. Gore, the Energy Task Force case, or Crawford v. Marion County, present few principles on which a decision can be based.  Rather than a jurisprudential judgment based on the application of previously articulated principles to their specific facts, each of these cases call instead for an essentially political resolution.  Like the other election law cases, social rights cases like Parents Involved and Carhart, and the corporate power cases, these decisions reflect a Court undeterred from imposing on the country the political views of the Court's majority.

Part III of this series will explore the failures of traditional checks on the Court, as well as ethical lapses by some Justices, suggesting intervention by the other branches.  Part IV will present a specific proposal through which Congress and the incoming Administration could balance the Court and restore the Separation of Powers.




[1] See John Hart Ely, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 7 (1980) (observing that, "[e]xcluding the 18th and 21st Amendments...six of our last ten constitutional amendments have been concerned precisely with increasing popular control of our government."); Reynolds v. Sims, 377 U.S. 533, 555 n.28 (1964) (observing that "The Fifteenth, Seventeenth, Nineteenth, Twenty-third and Twenty-fourth Amendments to the Federal Constitution all involve expansions of the right of suffrage.").

[2] Justice Stevens voted with the majority in Davis, in a seemingly surprising vote explored at length in Part I of this series.

[3] FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2684 n. 7 (2007) (Scalia, J., dissenting).