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Bush v. Gore Rears Its Head (Part IV): A New Check on the Court to Defend the Rule of Law

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Parts I (The Politicization of Voting Rights) and II (The Triumph of Politics Over Law) of this series demonstrated how the Supreme Court, under the leadership of Chief Justice John Roberts, has usurped what once passed for law in pursuit of a conservative political agenda. As noted by Si Lazarus, the Court's conservative majority has "systematically contravened statutory goals, misconstrued statutory terms, twisted or ignored congressional intent, and shown disrespect for democratic decision making by legislatures at all levels..."

Part III (Souter's Resignation as an Invitation to Balance a Politicized Court) examined President Obama's first nomination in the context of this historical politicization and suggested potential nominees whose vision and assertiveness could help counter the Court's conservative majority.

Rather than select a visionary legal academic willing & able to champion a more fair jurisprudence, the President chose instead this week to replace Justice Souter with a moderate nominee drawn from the ranks of the nation's appellate judiciary. While Judge Sotomayor will be a groundbreaking nominee and a thoughtful Justice, she will be unable to balance the Court. To be fair, no single appointment possibly could suffice, given the magnitude of the Court's slide to the right over the past generation.

This article examines the process of recent appointments to the Court in the context of the Court's politicized jurisprudence. It explores various ethical violations committed by several sitting conservative Justices: Kennedy, Scalia and Thomas contrived the Court's future nine years ago; Roberts and Scalia have decided cases despite direct conflicts of interest; and Roberts and Alito committed structural violations by intentionally misleading the Senate when seeking confirmation. These examples of inter-branch collusion with Executive officials violate not only the separation of powers doctrine, but also antitrust principles routinely applied to economic markets.

Concluding its examination, this article challenges the legitimacy of the Court's current composition and suggests how to restore the institution as a guardian of neutral legal principles, immune from politicization or violations of its process. Even if unwilling to leverage the unique coincidence of Souter's retirement and Senator Specter's defection by appointing an assertive legal visionary to the Court, the Administration and the Senate should introduce a new structural check on the Court to prevent its future politicization. Specifically, Congress should enact legislation to set 18-year terms for service in the Article III Judiciary. This approach would prevent the Court from being co-opted, ensure regularity in appointments, and preserve the Justices' insulation from political pressures.

Path Dependency...

Souter's replacement will be, in fact, the first legitimate appointment to the Court since Bush v. Gore usurped the judicial appointments process nine years ago. Yale Law School Professor Bruce Ackerman observed at the time that "the Court pack[ed] itself" by aggrandizing to its Justices the power essentially to choose their own successors -- through the intermediary of the President five of them selected. As the Bush Administration first took office, Ackerman noted concern that "[t]he Supreme Court cannot be permitted to arrange for its own succession." Bush v. Gore was:

not the first time in history that the Supreme Court... made a decision that called its fundamental legitimacy into question. But on past occasions, the normal operation of the system provided a remedy... [T]his time, the president... [wields the appointment power] in the White House as a result of an unprincipled judicial decision... [H]e will be acting as an agent of the narrow right-wing majority that secured his victory....

President Bush's appointments of Roberts and Alito in 2005 reflect precisely this result: the conservative majority in 2000 effectively contrived the Court's future composition. This path dependency not only represents a severe violation of the separation of powers doctrine, but one that remains ongoing, reiterated with every passing case in which today's Justices wield the legitimacy of their forbears to eviscerate their legacy.

...and Conservative Judicial Aggrandizement

The first article in this series examined the Court's "politicization of voting rights." Unfortunately, its conservative political effort to undermine the right to vote continues: this spring, Northwest Austin Municipal Utility District v. Holder invited the Court to overturn Section 5 of the Voting Rights Act ("VRA"). The VRA was a cornerstone of the civil rights movement, first enacted in 1965 and reauthorized four separate times, mostly recently by a 98-0 Senate vote only three years ago. Section 5 was the provision that "gave the legislation teeth," described by one constitutional historian as "one of the civil rights movement's crowning legislative accomplishments."

Barring a judicial switch of the sort that in 1937 enabled the New Deal, or Souter's surprise vote that in 1992 saved reproductive rights from conservative repeal, the Court most likely will strike down Section 5, denying Congress the power to require particular states to pre-clear changes to their voting rights laws with Justice Department officials.

For the first time since the Johnson Administration, specific jurisdictions known to have historically discriminated against racial minorities could be unconstrained from doing so again. Without a pre-emptive federal check, individual plaintiffs will be able to mount only after-the-fact individual challenges when states violate their voting rights -- without either resources to do so, or incentives, since their litigation will not impact elections already skewed by discriminatory exclusion.

Ultimately, the invalidation of Section 5 would scale back the north's victory in the Civil War by granting to states the power to once again deny their citizens rights ensured by the federal Constitution. We fought a military struggle 150 years ago to establish the principle of federal supremacy. It took us another 100 years to effectively ensure voting rights in the south.

Now, 40 years later, the law that effectively extended voting rights to minorities in the South may be declared unconstitutional, for no reason beyond exceeding limits on congressional power invented by Justice Scalia and his allies on the Court. Smelling the right-wing writing on the proverbial wall, Justice Souter was reportedly "visibly angry" throughout oral argument, "disappointed that he might be leaving the Court with a dissent in this case as being his parting gesture."

The Failure of Traditional Checks on the Court

Traditionally, the only checks on the Court have been the President's power to nominate Justices, and the Senate's equally important power to confirm or reject nominees. However, both sets of checks have failed in recent years.

The appointment power was first usurped in 2000 when the Justices chose the President who, in turn, appointed their chosen successors. As Ackerman predicted, the results of this circularity are apparent: the nation's current Chief Justice was the personal protege of his predecessor, whose vote decided the outcome of the 2000 presidential election. As Linda Greenhouse of The New York Times noted, "A 25-year relationship as mentor and protege ended only with Rehnquist's death days before his former law clerk was named to succeed him."

Meanwhile, the Senate's confirmation power has eroded. First, the Senate itself has repeatedly resigned its independence. Senators of both major parties, including then-Senator Obama, have framed their confirmation votes as obligatory to defer to the President's appointment preferences. This institutional capitulation resembles Congress authorizing previously illegal Executive acts, as it did when passing FISA in 2008 or the Military Commissions Act in 2006.

Nomination Hearings as "Kabuki Theater"

In addition, judicial nominees have learned from the example of Robert Bork, whose 1987 nomination to the Court was rejected after Senate hearings revealed his radical philosophy. Today, nominees actively conceal their judicial philosophies from the Senate and the American public. And they do so with disturbing success. Try as they might to investigate nominees, Senators (for whom personal wealth is a greater qualification than legal acumen) lack the training, skills or experience necessary to engage with judges or scholars inclined to mask their thinking. Ultimately, the failure of the confirmation process undermines democratic transparency.

These concerns are familiar to those who watched the Roberts and Alito confirmation hearings before the Senate Judiciary Committee. The process -- described by Vice President Joe Biden as a "kabuki dance" -- garnered tremendous attention, but ultimately shed little light on the Justices' prospective jurisprudence. Seth Rosenthal observes that while "the Court has begun charting a new course... no one could have confidently offered any such prediction based on what little meaningful information senators obtained during the... confirmation hearings" of Roberts and Alito. Senator Kennedy (D-MA) was more blunt:

When pressed on issues such as civil rights and executive power, Roberts and Alito responded with earnest assurances that they would not bring an ideological agenda to the bench... After confirmation, we saw an entirely different Roberts and Alito -- both partisans ready and willing to tilt the court away from the mainstream. They voted together in 91 percent of all cases and 88 percent of non-unanimous cases -- more than any other two justices.

While claiming to serve as "neutral umpires," Roberts and Alito instead conspired with the executive branch (and quite likely each other) to hide their views from the Senate and the American people. Once on the bench, they pursued a political agenda, while still masking their aims in the "judicial obfuscation" decried even by their ally, Justice Scalia. Two years after Roberts & Alito began their judicial crusade, Senator Schumer (D-NY) suggested simply that Congress had been "duped."

The system of constitutional checks & balances can not function when nominees lie to secure Senate confirmation. Indeed, deliberately impeding the Senate's ability to play its constitutional function is a structural violation of judicial ethics far more insidious than deciding cases presenting judicial conflicts of interest -- a more traditional sort of violation also committed by some Justices.

Judicial Conflicts of Interest

Roberts and Scalia, in particular, have decided cases of enormous significance, in spite of their personal conflicts of interests.

When interviewing with the Bush Administration in 2005 for his current position, Roberts was a judge on the D.C. Circuit, sitting in judgment over the Administration in the most significant detainee rights case to have emerged at that point. The case was Hamdan v. Rumsfeld, which challenged the military tribunals created to provide a veneer of justice for Guantanamo detainees. Roberts joined a poorly reasoned appellate opinion legalizing the Bush tribunals that the Supreme Court reversed the following year.

In fairness, Congress ultimately authorized the Bush Administration's military commissions in 2006, and the Obama Administration has shockingly proposed in 2009 to reinstate them, effectively reversing the Court in Hamdan and ratifying the most ignorant elements of the War on Terror. But the Military Commissions Act and President Obama's frustrating reversals of his campaign promises reveal more about Washington's co-optation by "national security" politics than the legitimacy of the tribunals themselves. And neither excuses the intervention of a lower court judge deciding a case as an agent of the President in order to secure his nomination for higher office.

Even earlier, Scalia cast a vote -- while privately vacationing with Vice President Cheney -- to maintain the secrecy of Cheney's meetings with energy executives. One of the most significant court rulings involving the Bush Administration, the decision ultimately laid the foundation for the Enron meltdown and the disastrous invasion of Iraq. Scalia's attempts to explain his decision not to refuse himself failed even to recognize his obvious ethical lapse, let alone mount a coherent defense of it.

These examples of judicial collaboration with executive officials further violated the constitutional separation of powers doctrine well after Bush v. Gore. The charades of Roberts and Alito before the Senate Judiciary Committee, and the conflicts of interest ignored by Roberts and Scalia, offer only more evidence of the mounting crisis in judicial ethics.

The appointment of two radical Justices in 2005 skewed the Supreme Court, transforming it into a source of conservative political activism. But even overlooking the bias pervading the Court's substantive decisions, the Court's current composition is illegitimate from a strictly process standpoint.

Antitrust Principles...

Antitrust principles explain why executive-judicial collusion threatens society and our constitutional separation of powers among the branches of government.

Section One of the Sherman Antitrust Act prohibits agreements among horizontal competitors, such as businesses that sell to the same market. Whether they fix a certain price or divide sales territory, horizontal agreements undermine the competitive process and ultimately harm consumers.

In much the same way that antitrust law aims to protect markets, one theory of constitutional interpretation views the Constitution, taken as a whole, as a textual mandate to protect political processes from co-optation. And with good reason: while historically applied only in economic markets, principles of competition law are even more necessary in political markets.

First, the potential co-optation of political competition holds far greater and more expansive consequences than the failure of economic markets. When any particular economic market is co-opted by colluding dominant actors, consumers suffer by paying higher prices or receiving sub-par goods or services. But when political markets are co-opted, literally every facet of public life -- from decisions about which economic markets to regulate, to whether minorities get to vote -- is placed at risk.

Moreover, because there we have only one federal government, the political process is more centralized than the numerous markets for goods & services. As a result, it is more vulnerable than economic markets to co-optation and manipulation, whether through agreements among major parties to impede participation by minor parties, or collusion between independent branches of the federal government.

... vs. Executive-Judicial Collusion

The Executive and Judiciary were designed to be institutional competitors within the system of divided powers articulated by Madison in The Federalist No. 10. This founding text is a seminal description of the Republic's constitutional structure, in which Madison writes of pitting factions against one another to prevent any single one from seizing control and imposing a tyranny of the majority.

At its most ambitious, No. 10 represents a forceful call for a multi-party system, requiring the expansion of the political process to include minor parties able to check collusive behavior by the major parties. (The false consensus that national security should trump constitutional protections for liberty and privacy exemplifies such collusion today.)

At a minimum, Madison argued for sharp separation between -- indeed, adversarial contention among -- the Judiciary and the other branches. On the one hand, the executive and legislature coordinate routinely; the President can even propose legislation for Congress to enact. But, as Alexander Hamilton noted in The Federalist No. 78, "The complete independence of the courts of justice is peculiarly essential" to our constitutional fabric.

In our Founders' vision of democracy in America, Congress was the primary branch. It is the subject of the Constitution's first substantive section, largely because it is the only branch intended to represent We the People. Yet Congress is being taken to the cleaners, not only by judicial nominees who have intentionally "duped" it, but also by a self-aggrandizing Court willing to blithely strike down seminal legislative acts on which tens of millions of Americans have relied for generations (like the Voting Rights Act), as well as new 21st century reforms sought by an emerging "progressive majority" in Congress. For the Court to collude with the Executive deeply threatens our Republic.

Yet the Executive and Judiciary did precisely this at several recent points: (1) in Bush v. Gore; (2) when Roberts was nominated to the Court during the Hamdan appeal; (3) when Scalia cavorted with Cheney while blocking efforts to expose his Energy Task Force; and when (4) Roberts and (5) Alito each coordinated with White House officials to hide their judicial philosophies and pro-Executive bias from the Senate and the American people during their 2005 confirmation hearings.

The Switch in Time: A History of Post-Appointment Checks

To restore the Supreme Court as an independent guardian of neutral legal principles, the political branches must impose a new check on the Court. The current checks -- nomination & confirmation -- operate only when new Justices join the Court. As a result, the country has no way to reign in a Court run amok.

FDR faced this problem when the Lochner Court impeded the New Deal by declaring unconstitutional any legislation carrying economic consequences. Frustrated by the conservative Court's self-aggrandizement and invention of laissez faire as a constitutional principle, FDR politically challenged the Court in 1937 with his "infamous" Court packing plan.

His challenge to the Court was the political low-point of FDR's historic Administration. But while unpopular, it proved vitally necessary to create the federal government as we now know it. Without FDR's effort to reign in the Court, its politicized jurisprudence would have prevented federal efforts recover from the Great Depression. Had the Court's conservative activism been allowed to proceed, we today would have no federal agencies: no CDC, USAID, ATF, FAA, FCC, EPA, FEMA, NASA or any of the hundreds of other agencies that comprise Washington's alphabet soup. It is to this entire apparatus, dating from the 1930s, to which the legal right-wing ultimately objects.

The history of post-appointment checks on the Court thus appears mixed: the only President to propose one lost his battle, but won the war.

Can Congress Check the Court?

But in fact, post-appointment checks on the Court are already accepted: Congress' power to enact and construct legislation gives it a de facto veto over those Court decisions that construe statutes. The 1982 re-authorization of the Voting Rights Act offers a timely example: 30 years before this year's challenge to its constitutionality, Congress revised the statute to reverse the Court's decision in City of Boerne v. Flores (which attempted to import a judicially-invented doctrine requiring plaintiffs to prove not only the impact of challenged discriminatory policies, but also their discriminatory intent).

On the other hand, this congressional "check" on the Court is neither effective nor comprehensive. First, Congress can not influence constitutional questions because the Court holds for itself the last word on constitutional interpretation. For instance, Congress was able in 1982 to amend the VRA to remove the Court's intent standard, but that standard continues to limit challenges under the 14th Amendment's Equal Protection Clause.

Moreover, even Congress' check on statutory construction is limited. Constrained by the collective action dilemma inherent in a body of over 500 members, Congress typically takes years to enact a single piece of substantive legislation, whereas the Court evaluates thousands of cases a year and decides roughly 100 each Term.

To balance the Court, then, a new check is required.

What Changed?

The risk of politicizing the Court has historically undermined any suggestion along these lines. But a neutral process to prevent judicial politicization would satisfy these objections. Moreover, the particular circumstances of our age render these concerns less apt than in the past.

First, today's public seems unfazed by executive aggrandizement. The "imperial presidency" crafted by Bush & Cheney represented the zenith of executive fiat, yet executive power remains undiminished even after their electoral repudiation. Even abuses as fundamental as disregarding habeas corpus, a bedrock principle dating to the 13th century, have been tolerated. Challenging the Court is hardly daring in comparison.

More fundamentally, the Court is already politicized: an article recently published in Britain lambasted the Supreme Court for "providing immunity to... corporate law breakers," excoriating "the zealots... led principally by Justice Scalia."

Rather than threaten its independence, efforts to balance the Court could thus help restore it -- especially if carefully structured to ensure substantive neutrality. Efforts to balance the Court need not replicate FDR's ham-handed institutional intimidation.

Comparing the Alternatives

Several proposed solutions would supplement nomination & confirmation with a formal post-appointment check on the Court. The most crude -- FDR's -- entails a legislative statute expanding the number of seats on the Court. A more sophisticated approach requires mandatory retirement for Justices, perhaps at the age of 70. Finer still is a regular schedule of retirements among Justices with staggered terms of service, so that each President appoints a new Justice every two years.

While forcing Justices off the bench may seem alien, there is no positive basis for lifetime judicial service. Nor, for that matter, is it constitutionally required. The Founders appropriately wanted judges to be free from political influence, but they could not possibly have contemplated Justices remaining on the bench for several decades, if only because life expectancies have expanded so dramatically since then. In any event, the goal of insulting judges from political influence can be achieved through means less extreme than life tenure.

Either a mandatory retirement age or fixed judicial terms would be immune to politicization. Both measures are substantively neutral: neither could be abused in order to subvert the Court's independence or politicize its jurisprudence.

Between a mandatory retirement age and fixed terms, the latter is the better option. Mandatory retirement seems to ensure capable deliberation by preventing Justices from serving beyond their intellectual prime or past the time when they lose touch with the country's changes. However, the incentives of a mandatory retirement regime would encourage Presidents to appoint younger and younger Justices in order to maximize the nominees' time and their (as well as the Presidents' own) influence on the bench.

In contrast, staggered terms would achieve the same goals (adding a post-appointment check without risking political co-optation), while avoiding the discouraging incentives of a mandatory retirement age. In addition, 18-year terms for Supreme Court Justices would ensure that Justices enjoy an opportunity build institutional memory and expertise, yet -- unlike the Justice who in 1986 claimed to have never met a homosexual while deciding to demean LGBT rights even as he relied on the labor of a gay clerk -- still remain attuned to the social realities of the society they often control.

A Moderate Path Forward

The opportunity to appoint a new Justice is one the nation welcomes with the eagerness of an ape in the desert approaching a mirage. But the relief offered by a single appointment is equally ephemeral.

Unless the President and Congress balance the Court, it will continue to impose the conservative will of five unelected judicial activists on the rest of the country. No result could make a greater mockery of democracy -- with the possible exception of decisions denying voting rights (which today's Court has also turned into a cottage industry).

While most efforts to balance the Court could suffer from accusations of partisan bias, a legislative statute requiring fixed judicial terms would be substantively neutral, ensuring the independence of the institution and protecting it from being politicized yet again in the future.

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