Kausfiles Special

Don’t Rush Me! (Part 8)

OK, can’t put it off any longer. The Supreme Court!

I’ll spare you the lede paragraph. (Three justices over 70, stark choices, Gore says “many of our personal liberties are at stake,” shape the course of blah blah blah.) Let’s assume for the moment that the next president will get to fill at least one or two vacancies; he’ll certainly appoint a lot of lower-court judges. Whose appointees would I prefer–Bush’s or Gore’s?

Fifteen years ago, I would have unhesitatingly said Bush’s. I would have remembered my law school days, in the mid-1970s, when the rights-making machine of legalistic liberalism was still churning away. Since virtually any public policy issue can be framed in terms of “rights,” this legal activism threatened to radically shrink the space for democratic decision-making. Between privacy rights, rights to welfare, and rights to “autonomous control of internal psychic space” (i.e., drug use), plus expansive readings of the First Amendment that essentially made political patronage unconstitutional, legislatures might not have found a lot to do–aside from complying with consent decrees. Conservatives generally opposed constitutional activism, often even on grounds of principle. Eventually, they more or less won the battle for public opinion.

When Gore babbles eagerly about how “the Constitution ought to be interpreted as a document that grows with … our country and our history”–sounding like a guy who went to the first year of law school for a few months but didn’t stick around long enough to realize what a crock much of it was–I think back to the liberals-out-of-control paradigm of my youth.

But it’s no longer that simple because–as you may have read in the press–conservative justices are now activists, too, in at least one area: federalism. For almost a decade now, a narrow, conservative court majority has been employing various constitutional doctrines to invalidate democratically enacted laws on the grounds that they exceed the scope of federal power. I don’t particularly like this trend because I like federal power. States are too small to solve national problems, too big to give citizens a sense of participation. We’d be better off, I’ve always thought, if this archaic middle ground were eliminated and the country divided into 10 numbered sectors. (Certainly law school would be simpler since about half of it is about what happens when state and federal court systems collide.) In any case, you want Washington to be able to act whenever necessary.

Maybe the best way to phrase the question, then, is whose appointees would scare me more–Gore’s potential liberal activists or Bush’s conservative activists? Let’s review some of the issues they will face:

Abortion: I’m pro-choice, and I’d be worried that Bush appointees would overturn Roe v.Wade, except for two factors. 1) Roe isn’t really threatened since a 6-3 majority supports its basic holding, and 2) Roe was a bad decision and a worse opinion. Its “privacy” rationale was so strained it has since been abandoned even by many pro-choice scholars.

Why isn’t legalizing or not legalizing abortion a decision we can make democratically? Even if it’s a question of right versus right (mother’s right versus fetus’s right), shouldn’t there be some democratic space for the people to balance these rights? In the early 1970s, state legislatures were in fact liberalizing abortion laws democratically–but then the Roe court stepped in and took over the issue. Roe’s effect was to call a large right-to-life movement into being while leaving “choice” proponents in the awkward, distinctly unpopulist position of arguing that unelected judges, instead of voters, should decide. It’s doubtful Bush really wants to see Roe reversed–the result would be that pro-life Republicans would get beaten up by the voters as abortion was democratically legalized in the vast majority of states (or by Congress). But even the prospect of Bush ending Roe isn’t upsetting. Sorry! Advantage: Bush.

Racial preferences: I take the crude, unsophisticated position that preferences may have been necessary for remedial purposes, but at some point (a point that has been reached) their toxic side effects outweigh their benefits even–especially–if all you care about is ending prejudice against minorities. The current Supreme Court, in fact, appears to be one Bush appointee away from declaring most preferences unconstitutional.

The danger is that by doing so, conservative judges will short-circuit the process by which preferences are being democratically discarded (as has happened in California and Washington) and that this judicial intervention would probably produce a divisive popular backlash. The danger on the left is that Gore-appointed judges–imagine Clinton adviser Chris Edley on the court–would somehow declare such democratic anti-preference initiatives unconstitutional, preserving reverse discrimination in perpetuity. The Edley threat is more remote, but greater. Advantage: Bush.

Flag-burning: The one thing that might get me to join Alec Baldwin in France would be a constitutional amendment allowing prosecution of flag-burners because it would fundamentally alter my idea of what America is. Bush appointees are far more likely to approve anti-flag-burning laws, but ironically that misguided constitutional interpretation might actually remove the rationale for a constitutional amendment. Advantage: neither.

School choice: Are you mortally offended that some public dollars might go to kids in Catholic schools? I’m not. Public dollars already go to Catholic colleges, and that’s considered constitutional. Is the high-school/college distinction such a bright line? Advantage: Bush.

Federalism: Bush’s big trouble spot, at least with me. The current court’s anti-Washington initiative (see Jeffrey Rosen’s discussion in the Oct. 22 New York Times Magazine) is especially disturbing because the conservatives have the Constitution on their side. If the Framers wanted Congress to have unlimited peremptory power, after all, they would have said it. Instead, they gave Congress power over “commerce.” That implies some sort of limit. We advocates of federal power are reduced to arguing that several unfortunate features of our founding document should simply be ignored.

Let’s set aside the federalism cases holding, on relatively obscure grounds, that states themselves can’t be sued. (Is it such a big deal that state employees can’t charge their employer with age discrimination? That still leaves 90 percent of the economy covered.) The two potentially most dangerous doctrines seem to be the “delegation doctrine” and the commerce clause.

Delegation doctrine: This is a rule, currently being revived by Scalia and Co., which says Congress can’t just give vague instructions to an administrative agency–i.e., an unelected administrative agency–and tell it, in effect, to “go make some reasonable laws.” It’s hard to argue that the Constitution doesn’t imply some limitation of this sort; otherwise Congress could legally delegate all lawmaking authority to Howard Kurtz and the guests on Reliable Sources. Or to my mother.

The problem is that all the current unelected rule-making agencies–the so-called “headless fourth branch of government”–were created for a reason. The reason is that the Constitution is so intentionally unwieldy–House, Senate, and president all have to agree to pass a law–that it isn’t capable of producing all the rules a modern society needs. What to do about this dilemma? My own answer is to amend the Constitution so it’s more efficient, but that isn’t going to happen. Meanwhile, if Scalia’s crusade forces Congress to take a bit more of the heat and vote on, for example, specific pollutant limits, that’s not necessarily a bad thing. Eventually the requirements of a modern economy will make the justices relent and allow the agencies (or the executive branch) to exercise some level of discretion.

Commerce Clause: When I took Constitutional Law, the whole course was presented as one majestic sweep of judicial progress in which the Commerce Clause–which seems to limit Congress to passing laws that “regulate Commerce … among the several States”–was rendered meaningless. The climax was Wickard v. Filburn, a New Deal case that said it was “commerce” when a farmer grew wheat for his own consumption. But in 1995, a 5-4 conservative majority revived the Commerce Clause, striking down the Gun-Free School Zones Act on the grounds that banning guns from school zones had nothing (or not enough) to do with interstate commerce.

Is this a scary precedent? A bit. Rosen envisions a situation in which Congress is “hamstrung” in its efforts to “control the spread of viruses that haven’t crossed state lines.” And, unlike Roe, federalism probably is on the ballot in this election. One more liberal appointee and the conservative line of cases would come to a screeching halt.

But even now the court is a long way from reviving the anti-New Deal use of the Commerce Clause to strike down basic economic regulations (in fact, it didn’t use the Commerce Clause much even when it was trashing New Deal legislation). Minimum wage laws, for example, are not about to be invalidated. And I’m enough of a Marxist to think that, in a national economy, the need for national laws will find a way make itself felt. Don’t big corporations prefer one set of regulations to 51 sets of regulations? Does Rehnquist really want to say the federal government can’t stop an epidemic? It would be better not to have to worry about this, though. Advantage: Gore.

Conclusion: There are legitimate fears of conservative activism. Do they outweigh the legitimate fears about revived liberal activism? Not in my mind–but as I say, I’m highly allergic to liberal activism.

Would Bush really appoint hard-line conservatives, anyway? In Texas, he’s picked judges who are relatively moderate, even on the abortion issue (click here and here for reports on this), but were he to get a U.S. Supreme Court appointment, he would come under intense pressure to name a reliable conservative. Worries that he’d pick another Scalia, though, are attenuated by several other factors: a) His appointees will have to get through a closely divided Senate; b) he has a political interest in seeing Roe preserved, for the reason given above; c) he only said he admired Scalia and Clarence Thomas, not that he’d appoint their clones. (His statement was reportedly designed to placate the right without promising them anything.)

Factor (a) would also work to moderate Gore’s choices–Larry Tribe, forget about it!--but Gore’s praise for liberal activism has been considerably more stentorian than Bush’s praise for conservative activism.

Bush rises by 5 points. He’d rise more, but I’m worried I don’t understand all the ramifications of the federalism issue. Either way, this hasn’t helped me with my decision, has it? And the polls open in six hours. The night is not so young anymore.