Is The Supreme Court A “Threat” To Democracy? Of Course Not

In advance of tomorrow's ruling, some pundits on the left are displaying some very odd views on the role of the law in American politics.

With less than twenty-four hours now left before the Supreme Court issues its opinion(s) in the litigation challenging the Constitutionality of the Affordable Care Act, pundits on various sides of the political debate surrounding the bill are already starting to lay the groundwork for their responses to what the Court does.Since the conventional wisdom, which could be completely wrong, currently seems to be that at least the individual mandate portion of the law is likely to be declared unconstitutional, most of that groundwork seems to be coming from the left and from those sympathetic to the PPACA. I’ve covered several of these “prebuttals” in earlier posts (see here and here, for example) The latest example of that which seems to be garnering the most attention comes from James Allows in The Atlantic, who argues that the current Supreme Court, dominated as it is by mostly conservative Justices, is subverting democracy:

Normally I shy away from apocalyptic readings of the American predicament. We’re a big, messy country; we’ve been through a lot — perhaps even more than we thought, what with Abraham Lincoln and the vampires. We’ll probably muddle through this and be very worried about something else ten years from now. But when you look at the sequence from Bush v. Gore, throughCitizens United, to what seems to be coming on the health-care front; and you combine it with ongoing efforts in Florida and elsewhere to prevent voting from presumably Democratic blocs; and add that to the simply unprecedented abuse of the filibuster in the years since the Democrats won control of the Senate and then took the White House, you have what we’d identify as a kind of long-term coup if we saw it happening anywhere else.**

Liberal democracies like ours depend on rules but also onnorms – on the assumption that you’ll go so far, but no further, to advance your political ends. The norms imply some loyalty to the system as a whole that outweighs your immediate partisan interest. Not red states, nor blue states, but the United States of America. It was out of loyalty to the system that Al Gore stepped aside after Bush v. Gore. Norms have given the Supreme Court its unquestioned legitimacy. The Roberts majority is barreling aheadwithout regard for the norms, and it is taking the court’s legitimacy with it.

In a follow-up post, Fallows cited the Court’s recent actions as one of  the signs what he claims to radical change in U.S. politics and, in yet another post, decides that the real problem is that there are too many 5-4 rulings (as if 6-3 is a better number for some reason). Jonathan Bernstein seems to agree in a Plum Line post, but pushes back against the idea that the Justices are inherently political in a post on his personal blog:

The truth is that (as the decision in the Arizona case should remind us) the current Court is certainly not simply the legal equivalent of the Sean Hannity, no matter how many crazed partisan rants Scalia might indulge himself in. We might get there in the future (or not), and we might get some decisions that sure look very partisan, but that’s not where we are now. It’s simply not true that there are five solid votes (or even four solid votes) for whatever wacky, ad-hoc legal theories GOP spinmeisters come up with.

Yes, four of those Justices are strongly conservative by all measures, but there is a real difference between supporting a long-standing judicial program and simply doing whatever the short-term partisan preferences of the Republican Party might be, even though those things will naturally (and quite legitimately) overlap much of the time. I do believe that Bush v. Gore was decided on ad-hoc partisan grounds…but that’s 12 years ago already, and I don’t think that anything since then shows that the Court’s conservatives are merely partisan hacks.

Will Wilkinson points out that Fallows’ argument isn’t supported by the evidence:

[I]t would seem that Mr Fallows “long-term coup” amounts to George W. Bush winning a presidential election, the ACLU prevailing in a first-amendment case before a not-very-activist Supreme Court, a few states implementing popular voter-ID laws to no clear effect, and senate Democrats refusing to suspend supermajoritarian procedural rules. This looks to me more like a list of things Mr Fallows finds upsetting than the slow-motion demise of American democracy.

Wilkinson brings up a fact that often seems to be forgotten in discussions of the left’s current bete noire; namely the fact that the American Civil Liberties Union was on the side of Citizens United in the Citizens United case. Last time I checked, the ACLU was not exactly a defender of corporatism. In any event, Andrew Sullivan responded to Wilkinson with this:

[W]hen you look back at how the Court tried to sabotage the New Deal under Roosevelt – under far more desperate economic circumstances – you see that naked politics has never, alas, been absent from the Court. What’s different now is a reversal of roles in which the president is acting according to the old norms and the court is actively reactionary. Under Roosevelt, the Justices were being conservative, trying to preserve the old order under radically changed circumstances. Under Obama, they are reactionary, seeking to undo a century of precedent for federal power. If the ACA is struck down on these radical new grounds, the stakes will be very clear. If the Tea Party keeps control of the GOP and the GOP wins another presidential election under Romney, the next appointees are likely to be more radical still. If there’s one thing Romney will aggressively pander on (is there anything he won’t aggressively pander on?) it’s the Court.

This strikes me as a rather odd historical interpretation of New Deal Era Court for several reasons. First of all, the parties who were acting in an unprecedented manner at the time were not the Justices of the Supreme Court, but the Congress and the President who were pushing through legislation that was unprecedented in American history and vastly expanding the power of the Federal Government far beyond any of the boundaries that had previously set. The fact that these measures may or may have not been politically popular but, as far as the law is concerned, that fact is, or at least ought to be, entirely irrelevant. The question that the Justices were being presented with in cases like Schechter Poultry Corp. v. United States was whether these laws, unprecedented in the history of the United States, were a permissible exercise of Congressional power. They answered in the negative, largely because existing precedent at the time made it clear that this was the correct answer. It was President Roosevelt who responded to decisions like this by declaring war on the Supreme Court for ruling in a manner he disapproved of and proposing a Court Packing Plan that even his own party in Congress refused to support. Why, exactly, is it that it’s the Supreme Court that was the villain in this scenario? And, why, exactly, is it considered admirable that, in the end, the Supreme Court bowed down to Roosevelt’s bullying?

The view of history reflected in Sullivan’s post reveals what I think is a mistaken and potentially dangerous view of the law, the role of the Supreme Court in our political system, and the Constitution. It isn’t the job of the Supreme Court to make decisions that are politically popular, or decisions that help the most number of people, or decisions that are deferential to the popular will. It is their job to interpret the law in accordance with the Constitution and past precedent, recognizing as always that precedent is subject to change if found to be incorrect, and rule accordingly. The fact that this might mean that a politically popular piece of legislation gets struck down is, in the end, something that is wholly irrelevant to the task that the Court is assigned in our Constitutional system.

Now, I will be the first person to admit that the Court has not exercised its Constitutional functions perfectly over the 223 years of its existence. We can all point to decisions the Court has made that are, in retrospect, grave mistakes. Some of these cases, such as Korematsu v. United States, remain good law to this day. However, it is a mistake I think to judge the entire institution by those mistakes, or to reject its role in favor of the majoritarian mob of Congressional dominance over the law. The fact that Congress wants to do something doesn’t mean that it should be allowed to do it, and the fact that the Supreme Court might, on Thursday, say that the PPACA is unconstitutional does not mean that it is illegitimate just because the “enlightened” likes of James Fallows disagree with it.

FILED UNDER: Health Care, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Tsar Nicholas says:

    Yep, the Univ. of Loopyville this week truly has gone off the rails on a crazy train.

    In any event, my issue with the Court is that it’s still far too the left of the spectrum. Kennedy simply can’t go an entire term without smoking from the left-wing crack pipe. Monday’s decision on mandatory LWOP for minors was an abomination. He didn’t exactly cover himself with glory on that Arizona case. I would prefer a 9-0 slate of Alito-style justices. I’d settle for 6-3, just to make sure.

  2. Tsar Nicholas says:

    Oops, far to the left, that is.

  3. Racehorse says:

    The Supreme Court needs to shift the power back to the states instead of being concentrated in Washington. States rights need to be restored.

  4. Anonne says:

    I’d say that Citizens United is the bellwether case to measure the threat to democracy. When moneyed interests are allowed to buy our country’s leaders freely, then the democracy is doomed.

  5. MBunge says:

    The Supreme Court is a threat to democracy because there is no practical check on its authority. Yes, there technically are ways to get around Court decisions but they are so difficult and so politically unacceptable as to be non-starters. The only thing that limits such a threat is the limitations the Court and its Justices impose on themselves to not step too far ouside the tone and tenor of their time in their decisions. The Court cannot, for example, simply invalidate over a century of thinking and practice on campaign finance reform or fundamentally change the extent of government authority over commerce that has guided policy-making for generations and then be shocked or outraged at the negative reaction.

    I think there was a line in Anne of a Thousand Days where someone said “You don’t tell a king what he can do. You tell a king what he should do.” The principle clearly being that a king’s theoretically unlimited authority must be informally abridged, lest it become too destructive. In much the same way, if the Court wants to maintain deference to its authority, it must recognize that it must act and behave in such a way as to warrant that deference.

    Mike

  6. PD Shaw says:

    I agree with Fallows, the SCOTUS striking down a federal law in Boumedeiene v. Bush (military commissions) was outrageous, on 5-4 votes no less. He does mention that one somewhere doesn’t he?

    The reality is that most of the time the SCOTUS strikes down a federal law, its on “bi-partisan” grounds. Since the 1980s its been about 60% as I recall. Most people don’t pay attention to more than three or four court cases in a decade, the tough ones that have sharp divisions. They weren’t paying attention to the decisions announced last week that had counterintuitive groupings of justices.

  7. Ben Wolf says:

    The “conservative” justices (and it should be considered problematic that they explicitly label themselves that) were clearly hunting for an excuse to strike the ACA down because they didn’t like it. Well I don’t like it either, but that doesn’t make it unconstitutional. Scalia’s questions during the hearing on ACA were downright incoherent and bizarre. You have to be utterly dishonest to argue, as Bernstein does, that people running around ranting about advancing the cause of their conservatism and accepting money to advance the cause of conservatism are totally capable of putting all such influences aside once time comes to take a vote.

  8. al-Ameda says:

    What’s happened is that presidential elections have consequences. Republicans have won 7 of the last 11 presidential elections and Republican presidents have had many more opportunities to nominate conservative justices to the Supreme Court.

    This is an activist conservative court, who can be surprised?

  9. gVOR08 says:

    However, it is a mistake I think to judge the entire institution by those mistakes, or to reject its role in favor of the majoritarian mob of Congressional dominance over the law. The fact that Congress wants to do something doesn’t mean that it should be allowed to do it, and the fact that the Supreme Court might, on Thursday, say that the PPACA is unconstitutional does not mean that it is illegitimate just because the “enlightened” likes of James Fallows disagree with it.

    Strawman. The issue at hand is whether the Court will rule based on the law and precedent, or whether it will rule based on politics and ideology, then paste together some flimsy legal rationalization to cover it.

    To a lay person the legal rationale for Bush v Gore is absurd on its face. As Ezra Klein has laid out in detail, Roberts went way past anything the plaintiffs asked for in Citizens United, based on a facile conflation of corporations with people and of money with speech and ignoring precedent. In the Montana case the real history of actual corruption was ignored in favor of some legalistic theory. It may look to a conservative lawyer like they are acting in good faith. The rest of us see room for doubt.

  10. mattb says:

    One good thing that comes out of periods like this is a demonstration of how empty the claim of “Judicial Activism” typically is. Its been interesting to watch how both sides have used this term a lot on recent decisions. Just as with the Arizona Ruling, I expect there will be ample opportunities for both sides to find “Judicial Activism” in tomorrow’s ACA decision.

    @MBunge:

    The Supreme Court is a threat to democracy because there is no practical check on its authority. Yes, there technically are ways to get around Court decisions but they are so difficult and so politically unacceptable as to be non-starters.

    Have to disagree somewhat with this. There are numerous ways to “get around” Supreme Court rulings, from amending laws to bring them into line to the arduous process of amending the Constitution.

    if the Court wants to maintain deference to its authority, it must recognize that it must act and behave in such a way as to warrant that deference.

    Fair point, and I think that in general it does. One way that happens is by placing constraints on itself — especially with the “tool” of narrow rulings. Another important way is by explicitly choosing NOT to hear certain cases.

  11. Ron Beasley says:

    Is The Supreme Court A “Threat” To Democracy? Of Course Not Yes. Citizens United turned us into a plutocratic banana republic where elections could be bought by a few.

  12. An Interested Party says:

    Monday’s decision on mandatory LWOP for minors was an abomination.

    Oh absolutely, because we all would be much safer if more 15-year olds recieved lethal injections…

    I would prefer a 9-0 slate of Alito-style justices. I’d settle for 6-3, just to make sure.

    Keep hope alive…