Pres. Bush, a conservative Republican, has nominated John Roberts, a Washington lawyer and specialist in appellate law, with 39 Supreme Court appearances to his credit, to the Supreme Court. Roberts lent his considerable legal experience and ability to Bush's successful legal effort to defeat former V.P. Al Gore in the post-election legal effort in 2000 in Florida leading up to the U.S. Supreme Court's putting an end to the vote counting that threatened to give the victory to Gore. Roberts clerked for Chief Justice William H. Rehnquist. It seems fair to say that Roberts is probably a conservative Republican, which is what you would expect Pres. Bush to nominate to the seat that Justice Sandra Day O'Connor announced she was vacating.
Then why all the interest in the fact that Roberts helped his law firm succeed in challenging an Arizona law that discriminated against gays? Conservative Republicans fear he may be soft on their opposition to gay rights based on liberal Court-made law of privacy. Justice William O. "Wild Bill" Douglas went a long way towards creating today's law of privacy when he wrote the opinion recognizing in married couples the right to receive advice and equipment allowing them to have sexual relations while not having babies. Right to lifers have a problem with this, or had. The bigger problem came about when privacy was extended to a woman having control over her own reproductive system, which means the right to have an abortion recognized in Roe v. Wade (1973). This has developed into the right of adults to behave sexually in private which may not seem controversial but is to social conservatives on the religious right especially when it comes to gays. "What's next, gay marriage," they wondered and predicted? Sure enough, that's what was next.
Liberals are up in arms because Roberts defended a group that aggressively picketed and was said to have harassed women approaching abortion clinics. They fear that he'll vote against a woman's constitutional right to abortion and erase Roe v. Wade.
When both liberals and conservatives are worried about you, you may be doing something right.
Maybe the problem is with our legal system, our constitutional law system.
The theory of our government is that you and I, being ordinary citizens, form something called "The People," as in "We, the People." We are ultimately responsible for what kind of government we have. You and I keep it from becoming a totalitarian dictatorship a la Stalin and Hitler, or a monarch as under King George III, or a theocracy such as the Taliban ran in Afghanistan. As Abraham Lincoln put it in his Gettysburg Address, our government is "of the people, for the people, and by the people. That's us.
The problem is that we stopped acting this way a long time ago, I don't know exactly when. Now you and I believe that we no longer control our kind of government. We let someone else do it. That someone else is the Supreme Court.
Although we call ourselves a democracy, we didn't vote for the Chief Justice or any of the eight Associate Justices or any federal judge. They're all appointed by the president subject to the advice and consent of the Senate, according to the text of the Constitution, per Art. II. We've given up a certain amount of democracy in order to have judges for life who, the theory goes, are insulated from doing our will, since they don't run for election or re-election.
Perhaps that wouldn't be quite so problematic if we could undo their handiwork if we didn't like it.
But we can't.
The way things have developed, we are stuck with the rules as laid down by the Supreme Court whether we like them or not. Popular majorities no longer count. Congress may not overrule decisions of the Supreme Court. Presidents may not overrule decisions of the Supreme Court. And we may not overrule decisions of the Supreme Court apart from an amendment process that is so impossible to use that we don't use it. Can you think of an amendment in which the people rose up to overrule the Supreme Court? Not Dred Scott. There was no attempt to amend that decision, which allowed slavery, before the Civil War. When Lincoln was elected, the South walked out, triggering the Civil War. To preserve the Union, Lincoln fought, not to wipe out slavery. He couldn't oppose slavery. He had too many border states that didn't walk out which had slavery. Had he fought to eliminate slavery he would have turned those friendly states into enemies fighting against him. So he waited and only later decided to free slaves, not so much as a moral proposition but in order to cut the engine of the South, all those slaves slaving away while the men fought. That had the peculiar effect of providing much of the North with an additional reason to fight, to free the slaves, not that the North was all that interested in black people whom many hadn't quite decided were people.
So it wasn't until 1868, after the war was over, that the winners realized that they needed to amend the Constitution in order to consolidate their gains. Congress amended the Constitution, not a movement of ordinary citizens. In order to carve the equality principle into constitutional stone, we relied on Congress to overturn, by amendment, the dreadful decision in Dred Scott.
When the people control their own fate by controlling their own constitution, this is called "popular constitutionalism." It represents the way things used to work but no longer do.
We no longer trust the people to do right. We can look to Hitler's German, Mussolini's fascism, and Stalin's Communism, which enjoyed tremendous popular support, to realize that relying on the people can be a big mistake. If you think the Court is bad, and Congress is worse, then the people are the worst as the place to look to preserve your freedoms, sad to say.
Or you could look to our own experience in popular constitutionalism. The Founding Fathers built the institution of slavery and the slave trade (two separate economic activities having huge social and other implications) into the 1787/1791 Constitution and Bill of Rights.
After the Civil War, when the North imposed a regime of Reconstruction on the South to clean it up and bring it back into the Union, the South hated it, and resisted northern troops carrying bayonets, while the North, exhausted and bled dry by the years of war, wanted to turn to making money during the postwar boom that gave rise to the age of robber barons. The war promoted northern coal, iron, steel, shipping and a railway boom in which many people could thrive economically. There was no more energy to aid or support blacks, who were cut loose of governmental protection. The result was a new form of slavery called Jim Crow, enforced by southern Black Codes, which eliminated freedoms gained in the Civil War, which claimed 600,000 lives.
Popular constitutionalism allowed institutionalized segregation to endure for decades. We're still dealing with the effects, despite a half-century of civil rights improvements following the Supreme Court's decision in Brown v. Board (1954) and other landmark decisions, before and since.
Here the Supreme Court over-rode popular sentiment that favored white supremacy and discrimination on the basis of race. The Court saved us from ourselves when we wanted to discriminate unfairly in all sorts of ways, from race to religion to gender, etc.
So which is the better way to go, in favor of popular constitutionalism where we rely on us to do right, knowing that we don't always, in very significant ways, or to surrender to judicial supremacy and trust the Court to force us always to do the right thing, which may include more separation of church and state, integration in public schools and marriage, abortion, and gay rights. Oh, and restricting the right of Congress to legislate in favor of individual rights as in Boerne/RFRA and in other significant ways, referring to the new states rights of the Rehnquist Court.
The reason for the sides lining up in opposition when it comes to confirming Supreme Court nominees is that we no longer rely on millions of people, or hundreds of Congressmen and women, but rely instead on one person on a Court of nine, which is often split 4:4, to save us.
You could like such a person to God, because whoever this person is, man or woman, this person has the power of God, life and death, over the rest of us.
So we pay attention to Roberts and wonder how it has come to this. It's come to this because the Supreme Court has truly become supreme in our minds and hearts, since we no longer trust Congress and us, much less the president. Do you recall when Pres. Nixon resigned after the Watergate burglary conducted to support his re-election? We don't trust presidents, either.
Since we have learned not to trust the president (the current one gave as a reason to go to war in Iraq the wrong one, WMD, when there were plenty of other good ones), and don't trust the people, being an evil and fickle bunch quite often, and don't trust Congress, and don't trust the Court either, truth to tell, what have we got left? God? We've tried that, too, and found Him wanting. We don't even trust God, can you imagine that?
Well, we might trust OUR God, but not someone else's. We can't agree on God. Too many people try to tell us that God is talking to them, and we don't trust them. Too many Jimmy Swaggarts and Tammy Faye Bakers have let us down.
No matter what we do, we have nowhere to turn that is guaranteed to be perfect all of the time.
So we've thrown up our hands and said, "Let George do it," George, in this case being the Gang of Nine with a new one on deck.
This is a helluva way to run a government.
It looks like we're stuck. And now we've got to decide whether Roberts should be our next god, or person wielding godlike authority over us, when it's us who are supposed to be wielding power over the likes of him and them.
Have we gone off the track?
Is it always essential that the Supreme Court have the final say in everything?
Don't we ever get to have the final say in anything?
Have we gone too far in abdicating our responsibility?
If we've learned not to trust a Presidency of one and a Court of nine and a Congress of over 500 and a population of close to 300 million and a God of one or many, who is left?
If you want to read more about it, see Larry D. Kramer's book, The People Themselves, Popular Constitutionalism and Judicial Review (Oxford U. Press, 2004).
He recommends looking to Congress. His argument is that Congress is at least as deliberative as the Court and has a lot more in the way of resources when it comes to getting and evaluating information on which to rely. Furthermore, he says, Congress does a lot of Constitutional law, daily, in researching bills, gathering support, discussing among offices and committees, and the like. In other words, the Supreme Court has no monopoly on virtue, wisdom, legal training, legal resources, etc. The Court relies on 30 or so law clerks to dig up law and write memos and opinions under the guidance of the nine justices. Congress has 435 representatives, 100 senators, all sorts of standing committees, the Library of Congress, and hundreds of staffers. Why not look to Congress to do its job right instead of abdicating to the priests in the temple? Instead of relying on a priestly elite caste presumed to be better than the rest of us, why not rely on us, as expressed through our representatives in Congress.
This way, we don't have to worry about a guy like Roberts, as he can't do quite so much damage.
How could this be done? All sorts of attempts or suggestions have been made, from proposals to give Congress power to over-ride decisions of the Supreme Court to curbing the Court's jurisdiction to hear matters in certain areas.
Why not, in a democracy, put the responsibility to keep the Constitution where it belongs, in the people's representative body, the Congress?
Let's put it this way: Who do you trust less, the Court or Congress? Judicial supremacy or popular sovereignty?
Who gets the last say, them or us?
Right now, it's them.
Prof. Laurence Tribe, author of American Constitutional Law, the attorney for Gore before the Supreme Court in Bush v. Gore (2000) wrote a scathing review of Kramer's book. I find Kramer's book admirable. It's got so much in it that while I found it put-downable, I didn't find it unpick-upable. The item here on Tribe's review "Tribe Scalps Kramer" is here.
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