Sunday, January 31, 2010
Criticising the Court Has a Long History The curious ritual that has become a feature of a president's State of the Union speech - the black robed justices of the United States Supreme Court sitting rigid, formal, unsmiling and strictly non-partisan in the front row of the House Chamber - assumed a good deal more relevance last week. President Obama looked down on the justices, at least the six who attended his speech, and let them have it over the Court's recent decision to unshackle corporate money in American politics. The cameras caught Justice Samuel Alito mouthing the words "not true" as Obama used the biggest stage in politics to tell the court to its many faces that it was wrong. The encounter, if that's indeed the right word, ginned up plenty of commentary. The reaction generally ranged from one extreme - "Obama was out of place" openly criticising the court - to the other - Alito's reaction was only slightly less bad mannered than Rep. Joe Wilson shouting "you lie" to the president during an earlier speech on health care reform. In truth, presidential - or for that matter legislative - criticism of the nation's highest court is almost as old as the Republic and why shouldn't it be? The court holds enormous sway over American life and, as we witnessed recently, the confirmation of a new justice has become the biggest vetting process in politics outside of the grueling primary gauntlet we put our would-be presidents through. A little history. In 1935, Franklin Roosevelt was so exasperated with the then-Supreme Court lead by Chief Justice Charles Evans Hughes that FDR spent more than an hour at a news conference berating the Court for its decision overturning most of the National Industrial Recovery Act (NRA), the centerpiece of the president's legislative effort to combat the Great Depression. The Court ruled that the NRA had improperly attempted to regulate interstate commerce. The White House worked differently in those days and a president's news conference was "off the record," meaning reporters could not quote him directly without express permission. The White House press corps was so astounded by FDR's tirade against the Court that they badgered press secretary Steve Early until he agreed to let them use just one of FDR's choice lines that has since gone down in history. The Court, Roosevelt said, was returning the country "to the horse and buggy era" of interstate commerce. This was the Court that, among others, the flamboyant Louisiana Senator Huey P. Long referred to as the "nine old men." When Long learned that the Court had finally taken up residence in its elegant new building across the street from the Capitol, and that the cost of the grandly columned structure was $9 million, he sneered, "a million dollars a piece for nine old men." During the Civil War, the great Lincoln assumed vast war powers and virtually ignored the Supreme Court, defying and marginalizing Chief Justice Roger Taney. Lincoln was so unconcerned about the sensitivities of the Court that while the Chief Justice was gravely ill he aggressively promised Taney's job to his own problematic Treasury Secretary Salmon Chase. In an earlier day, Thomas Jefferson fought openly with the Court and referred to the Constitution becoming "a mere thing of wax" in the hands of judges. Dwight Eisenhower is remembered more and more as a "near great president," not least for his appointments to the Supreme Court of Earl Warren and William Brennan, but he was fierce critic of the Court. Eisenhower fumed privately over the Court's landmark Brown v. Board of Education desegregation case in 1954 and spoke bitterly of his disappointment in Warren. Ike also refused to speak out publicly in the aftermath of the Brown case, unmistakably leaving the impression that he disagreed with what is now considered one of the greatest rulings in the history of the high court. Out of the White House in 1961, Eisenhower was asked if he made any great mistakes as president, to which he replied, "Yes, two, and both are sitting on the Supreme Court." In 1937, the the very eve of rolling out his unbelievably controversial plan to enlarge the Court as a means of liberalizing it, Franklin Roosevelt had seven of the nine justices to dinner at the White House. Only the president and a few of his closest aides knew that FDR was planning a direct, frontal assault on the Court by "packing" it with as many as six additional judges hand picked to do his bidding. It was widely reported at the time that the president completely enjoyed the idea of entertaining the "old men" all the while knowing he was shortly to attempt to politically cut their throats. Presidents have been going after the Court for a long time. In a provocative book published last year - Packing the Court - the eminent American historian James MacGregor Burns argued that we need more debate, not less, about the role the Supreme Court has assumed in American life. Burns goes so far as to argue that the Court has over two centuries grabbed power far beyond what the separation of powers and a striving for balance call for in the Constitution. In fact, Burns predicts a coming crisis in which the Supreme Court will be the centerpiece in rethinking whether the American people, through their elected representatives, or those unsmiling justices in the House Chamber will finally determine what the Constitution really says. Without regard to that ominous prediction, a couple of facts seem obvious. The current Court is split 5-4 on many, if not most, issues fundamental to the left. At the same time, the very conservative Roberts Court, as evidenced by its most recent ruling, has turned the old argument about activist judges on its head. Should the Roberts Court willingly continue an aggressive posture, a kind of judicial activism of the right, and overturning 100 years of precedent is by any measure some type of judicial activism, it could signal many new fights over many new rulings in the years ahead. Given this landscape, it is not a risky prediction to forecast many more rhetorical jabs directed at the Court from the White House and a lot more "not trues" floating back. Such is our history.