The Real Activist Judges

Is It Time to Rein In the Court? The esteemed American historian James MacGregor Burns published an important and fiercely argued little book last year that received too little attention. Burns, an historian of "political power" - his books about FDR's presidency are still among the best accounts of Roosevelt's accumulation and use of presidential power - turned his attention in his latest work - Packing the Court - to the awesome power of the unelected members of the United States Supreme Court. Jeffery Rosen, writing in the Washington Post, called the book "readable and accessible," but also a polemic, albeit an "elegant and interestingly radical" one. Burns offered a bold and far-reaching critique of the Court as having historically and unconstitutionally overstepped its authority and he suggested that before long some president - or the people - will need to act to re-define the power of the unelected third branch of government. The Court, Burns contends, has historically been populated with "partisan politicos" who have made the judiciary both unstable and unrepresentative of the American people. Burns, as Emily Bazelon noted in an excellent summary of the book at Slate, goes all the way back in his critique to the landmark case Marbury v. Madison. If you remember your history, Marbury was the case, with John Marshall as Chief Justice, that forever established the notion that the Supreme Court has the power - no where found in the Constitution - to review and rule unconstitutional acts of Congress. From such power, Burns argues, much trouble has come to the Republic.

Citizens United v. FEC

I've been thinking about Burns' arguments in light of the extremely controversial recent case involving campaign finance limits. In that case, Citizens United v. FEC, the court effectively overturned a 100 year old ban on corporate and labor expenditures in federal elections and likely impacted existing laws in more than half the states.

[Montana, with a colorful and corrupt history of corporate political influence, is one state where existing law is potentially impacted by the Citizens ruling. The state's former top election official, Bob Brown, offered his take recently at NewWest.net.]

Some of the more compelling analysis I've read of the landmark Citizens case comes from Ben W. Heineman who once served in senior legal and public affairs roles for corporate giant GE. Heineman makes three key points about the Citizens case, but each also relates to a larger argument about the current Roberts Court and its approach to the Constitution and Congress.

First, Heineman says, the Court imposed in the Citizens decision its own "values" as opposed to the values of the elected and openly political branches of the government. The Court, he argues, did not need to render such a sweeping decision, but by the narrowest of margins, did just that.

Similarly, the Court swept aside a Teddy Roosevelt-era law that denied corporations the same rights as individuals. Again, a value judgment, in Heineman's view. And, finally, the Court completely disregarded the "political record" concerning the issue of corporate political spending by denying that Congress - in a whole series of political findings over a long period of time - had demonstrated a compelling public interest in prohibiting unlimited corporate money in politics.

Whatever your feelings about corporate "free speech," which is how the Roberts Court presented the issues, the Citizens case should, once and for all, put a torch to the claim that "conservative justices" bring to the bench a bias to defer to the political branches of the government. With one sweeping ruling, the Roberts Court, or at least five members, overturned decades of precedent, ignored the policy prescriptions of Congress and issued a broad, far-reaching decision where a narrow, limited ruling was not only possible but desirable. This is not the behavior of a "conservative" court.

An Activist Court

One of the great political fictions of the last 25 years years is that "activist" judges - these judges are always from left of center politically - have molded the law and the Constitution in ways not keeping with the intent of the Founders. In fact, over the last 25 years, it has been the conservative majorities on the Rehnquist and now the Robert Court that have been the "activists." There is more to come.

In his book, Professor Burns offers the radical prescription that some future president - or current president - should simply defy the Court when it overturns a policy position that has been fought out, compromised and agreed to by the political branches of the government. I'm not sure I would go so far, since I still wonder what might have happened, for example, had Richard Nixon defied the Court during Watergate or had Al Gore not quietly stepped aside when the Court made George W. Bush president in 2001.

Still, the Citizens case and what comes along next from the Roberts Court may make such a challenge less and less unthinkable.

President Obama was sharply critical of the Citizens decision and was criticized for his criticism. Still, Obama's critique was really quite measured and he may find that he'll have many more occasions to speak out about rulings from this Court. In criticizing the Court, he was also in good company. Presidents have done so repeatedly in our history.

Franklin Roosevelt found that taking on the Court, as he did in 1937, was a short-term political loser, but more because of how he managed the criticism as opposed to the substance of his complaints. Arguably FDR's assault on the Court helped moderate its conservatism in the late 1930's. The other Roosevelt, Teddy, repeatedly lashed out at the Court early in the century, once complaining of "flagrant wrongs" committed by judges.

A wise man once told me the Founders had made one fundamental mistake: they turned one whole branch of government over to lawyers.

Another made the observation that all judges, by their nature, are political and that doesn't change once the black robe is draped over the shoulders of a former political operative. Judges almost always receive appointments, and, at the federal level, lifetime tenure, by virtue of a political background or a political sponsor. What they do with the power that they alone define is also political.

More Power to the Court

In the poisonous and largely paralyzed world that is Washington these days, the Roberts Court may have the clearest agenda in town and an agenda that can actually be implemented. Whether the country likes it over time is another matter.

Fundamentally, the power of the Supreme Court and the role these largely untouchable justices play is a matter of separation of powers. James MacGregor Burns would argue that the Court has amassed power all out of proportion to what our system envisions or can tolerate over the long term.

A president can influence the Court with appointments and the Congress must advise and consent, but something else is also required if our system is to "balance." The Court must self regulate; it must restrain its own activist and value driven impulses. The corporate campaign finance case is an indication that the current majority is unwilling, or unable, to impose that burden on itself. Despite what Chief Justice Roberts said during his confirmation hearing about seeing the role of a judge as an umpire merely calling "balls and strikes," these umpires don't seem to be defining the strike zone as much as tearing up the rulebook.

We'll also see whether the country - from the political right to the political left - really tolerates that attitude over time. Neither conservatives nor liberals should be very comfortable with the direction we seem to be headed.