Sunday, June 28, 2015

The Post-Judicial Court?

Over at the National Review Andrew McCarthy had discovered/decided that this court--this 'Supreme Court'--has become nothing more than a political animal: While sometimes so-called conservative justices disagree or argue, on a political issue there is never any question how the 4 liberal justices will vote:
There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.
He's got a point--or does he?

What Is To Be Done?
 McCarthy stops just short of a detailed prescription--but he does seem pretty clear here:
If the justices are going to do politics, they should be in electoral politics. If John Roberts is going to write laws on the days when he isn’t posing as powerless to write laws, if Anthony Kennedy truly believes the country craves his eccentric notion of liberty (one that condemns government restraints on marriage 24 hours after it tightens government’s noose around one-sixth of the U.S. economy), then their seats should not be in an insulated third branch of government. They should be in an accountable third chamber of Congress.
This is pretty much what Senator and GOP president Ted Cruz has called for:
Sen. Ted Cruz (R-Tex.) has proposed a constitutional amendment that would subject Supreme Court justices to periodic judicial elections in the wake of rulings that upheld a key portion of the Affordable Care Act and affirmed gay couples' right to marriage. 
“I am proposing an amendment to the U.S. Constitution that would subject each and every justice of the United States Supreme Court to periodic judicial retention elections," Cruz said Saturday, during a speech in Des Moines, Iowa. He also called for such elections in the National Review on Friday.
If and when the GOP wins the White House what might these newly minted SCOTUS activists do (at least during their elected tenure)? John Hinderaker has some ideas--discover OTHER new "fundamental rights!"
For example, how about a “fundamental right” not to pay income taxes in a percentage exceeding that which other Americans are charged? Why isn’t the progressive income tax a violation of the equal protection clause? That is a much stronger argument than the one the Court has just accepted on gay marriage. Or, how about a theory that the Internal Revenue Service is violating Americans’ right of privacy–that same right of privacy that the Court found among the emanations and penumbras of the Constitution’s actual provisions–in seeking extensive information about taxpayers’ finances? 
Or how about a fundamental right to affordable energy–or, rather, to be free of government policies that unreasonably raise the cost of energy? If the Supreme Court discovered such a right, the EPA’s anti-coal regulations would be unconstitutional. You could write a decision in support of such a “fundamental right” that would be at least as persuasive as Justice Kennedy’s “fortune cookie” travesty. What is more fundamental than heating your home and driving your car? To paraphrase Justice Kennedy, what if a voice cries out in the night, saying, “Honey! Can you turn the heat up?”
It's a thought.

On The Other Hand . . .
The Omnivore has to throw cold water all over this. Firstly, on a 9-person court there has only, ever been questions about how two of the justices will vote (Roberts and Kennedy). Justice Thomas gives speeches at Tea Party events and doesn't even ever ask any questions: he's as predictable as gravity. In the case of Kennedy it is because he is, resolutely, a man of principles--and they're kind of weird libertarian-ish principles. Secondly, in the case of Roberts, there wasn't any questions until his first ACA decision which got him branded a traitor by many on the right--but was probably done to avoid his legacy being that of a political operative.

Secondly, remember that time SCOTUS elected The President? Bush got 100% of the black-vote in that election. When the chips were down they were certainly happy to elect from the bench and conservatives were pleased.

Citizens United? Another political decision that had liberals screaming their heads off--but had conservatives lauding the court's wisdom.

If you're still not convinced, consider this: a major pressure point that conservatives (and liberals) discuss in national presidential elections is the vast importance of 'getting your guy in the Oval Office' because "of the judges." Anthony McCarthy is probably about 16 years old as he's apparently never been exposed to that argument--but trust The Omnivore, Anthony, it's out there--and people on both sides are making it in a breathless panic.

But What About The Fact That He's . . .  Also Kinda Right?
Despite being wrong about Things Being Different Now, McCarthy does kinda have a point:
Yet, for all the non-stop commentary, one detail goes nearly unmentioned — the omission that best explains this week’s Fundamental Transformation trifecta. Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?
So what . . . about that? It is something of an interesting point--if the Chief Justice (the Dread Justice Roberts) might shift around, isn't it at least noteworthy that the 4 liberal justices never will? Let's examine that. We don't know exactly what is going on in the heads of these people--but we do know something about what the context for their decisions are. Let's see:

Gay Marriage

This was one where Roberts did the Right Thing (meaning he voted with the Right bloc). The fact is that everyone who had been paying attention to Kennedy knew more or less where he stood and what he was going to do. Why did we have no question about the other 8 members of the court? Well, firstly because the politics and theology of the question was clear cut--but also because the direction of the country was pretty clear cut. Let's look at a case of The Framer's Intent vs. Direction of the Country In the case of Scott vs. Sandford a part of the court's decision as this:
[ Chief Justice Taney ] decided: "the affirmative of these propositions cannot be maintained." According to Taney, the authors of the Constitution had viewed all blacks as "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect."
Oh, yeah: That was Dred Scott vs. Sandford (his owner). The country has changed rapidly and as a whole in the direction of allowing gay marriage--including young Republicans. The idea that there's any doubt about where the liberals would lie on this is a fantasy. It's also true that there was almost no question about where the conservatives would lie--or, indeed, where Kennedy would come down.


In the Obamacare ruling there WAS questions about how both Roberts and Kennedy would vote--in this case the question was around Roberts more than Kennedy since he represented a "fail-safe" should Kennedy go against the ACA (in other words, the ACA had two potential saviors on the bench). The conditions--the context--around the case, though was pretty significant.
  1. A ruling against the ACA would throw the country into chaos and embroil the party that has majorities in both houses of Congress--the party to which Roberts belongs--into a civil war.
  2. The administration said, credibly, that they had no contingency plan for such a ruling. This was very likely true: like it or not, the GOP would get the blame and the 'contingency plan' to demand a 1-sentence fix to the law while parading people losing their coverage on national television was all the Plan B they needed. While this might have "solved the problem" (the GOP would eventually cave) the idea of banking on it would be more than any prudent person would willingly undertake.
  3. Despite what McCarthy says, laws have been evaluated by the "entirely of the intent" before--this isn't as stark a decision as he feels it is--and the betting markets called it accurately. 

Conservative Overreach?

One thing that McCarthy should consider is that while it's possible that the court has simply become a politicized legislative entity, it is also possible that conservatives have become well more conservative than the court and may be, erm, courting disaster by assuming Bush and Reagan-era appointees still line up with today's Tea-Party-tinged conservatism. From The UpShot:
Why are conservatives losing more often? While the justices may have changed their views in some instances, it’s also possible that the types of cases the court is deciding have shifted. What seem like liberal decisions may instead represent conservative overreach.

In a 2009 article, the political scientists Kevin T. McGuire, Georg Vanberg, Charles E. Smith Jr. and Gregory A. Caldeira proposed a theory that provides an alternate explanation to liberal drift. They predicted that conservatives would press their luck to take advantage when they had a majority on the court, appealing more cases they lost in lower courts. (Conversely, liberals would be less likely to appeal cases because they were more likely to prefer lower-court decisions and to fear creating damaging precedents.) Mr. McGuire and his co-authors then showed empirically that this process increased the number of conservative reversals of lower-court rulings but also increased the number of cases in which a more liberal ruling was affirmed because litigants guessed wrong about how far the court was willing to go. 
Their prediction seems to fit nicely with recent evidence.
This should be closely considered--especially in light of conservative frustration about their difficulty in winning national elections and the national popular vote (and possibly with Bush-v-Gore as instructional in the power of a conservative court).

The Omnivore is unimpressed with the idea that the SCOTUS rulings are something new or different--the country has often wound up before the judges on intractable problems. What's new, though, is that the GOP, not seeing a way forward other than through the courts is outraged that they are not more political. Remember: the various ACA lawsuits were designed to change a passed law--however it was passed--through judicial fiat. It's not the activism that outrages them--it's the 'betrayal.'

The idea that this would be ameliorated by 'voting the bastards out' (Ted Cruz's idea) is also deceptive: what really needs to happen is for the GOP to vote a conservative IN (into the White House). This, not coincidentally, is also what needs to happen to repeal Obamacare--and has been what needs to happen to repeal Obamacare for quite some time. The reason that message isn't the one that's being pushed is because it's hard and unpopular.

THAT'S the real story here--not the court going this way or that.

No comments:

Post a Comment