Linda
Greenhouse, the longtime Supreme Court reporter for the New York Times, declared surrender today.
For decades, she
argued that the Court was a higher form of government, engaged in Law, not just
politics. Now she has decided that the
justices are just politicians in robes, after all.
The straw
that broke her faith? The Court’s
decision to review King v. Burwell, a
case confirming that Obamacare subsidies can go to people in insurance
exchanges that the federal government sets up in states that haven’t created
the exchanges themselves. Without the
subsidies, the worst-case scenario has Obamacare entering a fiscal death
spiral. The best case is that it would
be another body blow to a law that is managing to work despite design flaws and
relentless opposition. http://www.thedailybeast.com/articles/2014/11/10/the-gop-could-make-obama-kill-obamacare.html
The Court’s
hasty grab at a hot-button case it doesn’t need to decide is unseemly and
partisan-feeling. Greenhouse is
absolutely right. Coming from a very
smart and sincere person who loves the Court and the law, her crie de coeur is striking.
But the
Supreme Court has been political since the day it was born. It’s just that the way it is political today
is a symptom of the nastiness and futility of our politics.
Cast an eye
over the history of the Supreme Court, and you will see no golden age of
apolitical judging. Today’s conservative
activists, especially the older generation such as Justices Scalia and Thomas,
came onto the Court in reaction against an earlier generation of liberal
activists. The liberals had established
abortion rights, extended constitutional equality to women, increased the
rights of criminal defendants, and briefly declared the death penalty
unconstitutional.
The conservatives saw all of this
as blatantly political activism. They
sought control of the Court to restore the Constitution and protect law from
politics – at least as they understood it.
Now those conservative restorationists are the partisan activists who
have broken Linda Greenhouse’s faith.
And what
about those liberal activists who made the young Scalia and Thomas so
indignant? They were the children of
another revolution. Their predecessors –
and some of them – also came onto the Court to restore the Constitution and
save the law from politics. Only the
activists they overthrew were conservatives: anti-New Deal justices who upheld
“economy liberty” and “limited government” by striking down minimum-wage laws and
the first wave of Franklin Roosevelt’s legislation.
And so it
goes, back through judicial struggles over Reconstruction, slavery, and the
now-esoteric bloodletting of the early nineteenth century, which pivoted on
questions like the constitutionality of the national bank. Someone has always been trying to save the
law from politics and restore the Constitution.
When you look at it clearly, saving the law from politics turns out to
be a thoroughly political job. First you
have to convince people to accept your version of the boundary between law and
politics. Then you have to get judges
onto the bench who agree with you. The
history of law is the history of politics, and vice-versa.
So why do so many smart people believe in
the difference between law and politics?
Why do they sincerely try to restore, or preserve, the line between the
two, and get heartbroken when the line fails?
It’s not
just naivete. The special role of the
American courts, particularly the Supreme Court, is to administer principles
that have won so decisively in politics that they get taken off the table. The
triumph of the New Deal brought in a generation of judges who implemented new
principles – above all, the legitimacy of the regulatory and welfare state –
across the legal system as the shared framework of a national consensus. The era of the Civil Rights Movement and the
Great Society led a generation of elite liberals, including many of the
Justices, to embrace broader principles of personal liberty and equality, which
they saw as perfecting the American social compact. They were busily implementing these in cases
like Roe v. Wade when a right-wing
insurgency took them by surprise. The
fight that started then has only become more pitched.
There’s no
line between law and politics now because our politics is too divided to
generate one. We cannot begin to agree
which issues should be taken off the table and handed to courts. The conservatives on the Supreme Court are
aligned, intellectual, politically, and institutionally, with lawyers and
activists who want to dismantle much of the regulatory and welfare state and
stop or reverse the extension of civil rights and liberties. The liberals are aligned with those who have
opposite aims: preserving and extending civil rights and upholding the
regulatory state as a legitimate aspect of government. The country is divided, sharply and
unrelentingly, over the same questions.
What one side tries to take off the table, to turn from “politics” into
“law,” the other side is always trying to grab back. With every grab, the idea that law and
politics are separate becomes harder for anyone to believe.
Politics
gives law its premises: its basic commitments.
Law has its own kind of integrity, based in applying principles
consistently, integrating competing goals, giving the same words the same
meaning in different places and explaining why not when it doesn’t. If you have worked closely with judges who
practice this craft, you know it isn’t just politics, any more than
architecture is just drawing. Law in
this sense is valuable, even essential work, but its fabric gets torn when the
premises change – like ripping a weaving project suddenly into a new kind of
garment. It changed in the Civil Rights
era, and in the New Deal. And then it
stabilized. Now it is not stabilizing,
and the constant contest at all levels, from basic premises to craft, means that,
increasingly, everything feels partisan.
All that is solid melts into fetid air.
We’ve been
denied what Americans seem perennially to wish for – a Supreme Court that is
better than we are – surer, clearer, wiser and more unified. It turns out that was really a wish to be a
better version of ourselves. On the one
hand, it’s good to be rid of the illusion and stand on the real ground of
democratic politics. On the other hand,
what broken and disappointing ground it is.
But we will need a better politics to heal the law.
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