The New Republic

As an explosive showdown over judicial nominations approaches,
Republicans are depicting themselves as champions of the will of the
majority. "Only in the United States Senate could it be considered
a devastating option to allow a vote. Most places call that
democracy," Senate Majority Leader Bill Frist said in a speech to
conservative Christian groups on April 24.To Republicans, the Democratic filibuster of seven of President
Bush's judicial nominees is not just an undemocratic tactic; it is
an undemocratic tactic being used to protect an undemocratic
institution, the U.S. judiciary. In their fight against the bench,
too, Republicans depict themselves as avatars of popular will. The
courts, in the words of House Majority Leader Tom DeLay, have "run
amok." According to James Dobson, president of the conservative
Christian group Focus on the Family, the Supreme Court justices are
"unelected and unaccountable and arrogant and imperious and
determined to redesign the culture according to their own biases
and values, and they're out of control." The only solution, DeLay
told a recent conference of Christian conservatives, is for
Republicans to "reassert Congress's constitutional authority over
the courts." Both the anger over the filibuster of Bush's judicial
nominees and the demand for more conservative judges are thus
justified in the name of public opinion.

In their attacks on the courts and on Senate Democrats, however, it
is congressional Republicans who have run amok. Polls show that
more than two- thirds of Americans oppose eliminating the
filibuster. Furthermore, the Supreme Court is hardly the
unaccountable institution that Dobson and his congressional allies
suggest. Instead, the Court has carefully followed the election
returns, siding with economic conservatives and against social
conservatives, just like the country as a whole. At this odd moment
in history, the courts, in fact, are doing a better job of
reflecting the wishes of a majority of the country than
Congress--and that is dangerously undemocratic.

It's easy to criticize the arguments of both Republicans and
Democrats in the filibuster battle as opportunistic. Democrats
often speak as if the threat of the filibuster has long been a part
of Supreme Court nominations, but in fact, it was only used
once--to derail the nomination of Abe Fortas as chief justice in
1968. Moreover, nine of the Democrats now defending the
filibuster-- including Senators John Kerry, Ted Kennedy, and Joe
Lieberman--supported its elimination during the Clinton years.
Republicans, for their part, were perfectly happy to filibuster two
of President Clinton's executive nominees, and they resorted to
other procedural maneuvers to deny Clinton's judicial nominees an
up-or-down vote.

But far more significant than these political flip-flops is the fact
that the House and Senate are no longer reliable representatives of
most Americans' constitutional views. This is a dramatic and
important shift. For most of U.S. history, all of the great
constitutional issues--from the meaning of free speech to the
meaning of equality--were debated in the House and Senate, which
reflected the views of democratic majorities more precisely than the
president or the courts. But, as political scientists Jacob Hacker
and Paul Pierson argue in their forthcoming book, Off Center:
George W. Bush, Tax Cuts, and the Erosion of Democracy, recent
changes have made Congress an unreliable representative of majority
will. Now that incumbents, thanks to partisan gerrymandering, are
virtually assured reelection, politicians have a strong incentive
to pander to their most reliable supporters--including partisan
activists and high-stakes donors--in order to avoid the primary
challenges that now decide elections. This means that
representatives and senators can increasingly ignore the
preferences of the moderate majority without suffering electoral
consequences.

Of course, if Republicans eliminate the filibuster and Bush then
succumbs to demands from the religious right to nominate radical
Supreme Court nominees-- such as Janice Rogers Brown, whose
appellate nomination was blocked by Democrats--a majority of the
country might become alarmed. After all, in the Schiavo case, which
has, more than any single event, rallied right-wing opposition to
the judiciary, two-thirds of the public opposed Congress's
intervention in an ongoing judicial proceeding. But that doesn't
seem to matter to congressional Republicans, who are in the thrall
of their base: interest groups on the extreme right who care
intensely about judicial nominations because their socially
conservative views are not shared by a majority of Americans.
Having ostensibly played an important role in Bush's reelection,
these groups feel entitled to political payback.

Unlike the Republican base, however, a majority of the American
people agree with the Supreme Court on most important issues. In
the 1980s and 1990s, as conservatives passed tax cuts and scaled
back the size of government, the Court modestly followed their
lead, striking down laws on the margins of the post-New Deal
regulatory state, such as the Gun-Free School Zones Act of 1990.
And, as the public sided with liberals in the culture
wars--endorsing gay rights, affirmative action, and access to
early-term abortions--so did the Court. "The reason the Court's
economic conservatives won and its cultural conservatives lost is
simple. In the arena of politics, economic conservatives were
winning and cultural conservatives were losing," writes Mark
Tushnet in his new book, A Court Divided. Lower courts, by and
large, have been similarly strategic in following the election
returns, and the few decisions that have challenged deeply felt
currents in public opinion--in cases involving gay marriage and the
Pledge of Allegiance, for example--have often been reversed by
higher courts or by popular initiatives at the state level. By
siding with the political winners rather than the political losers,
the Supreme Court, under Sandra Day O'Connor's leadership, has
represented the popular will more reliably than Bill Frist.

Fortunately, the canniness of the courts in following public opinion
suggests that Republican attacks on judicial independence are
unlikely to succeed. Political scientist Gerald N. Rosenberg has
examined nine periods in U. S. history when judicial decisions led
to meaningful congressional opposition, as measured by the number
of bills introduced in the House and Senate attempting to curb the
Supreme Court's power.

In three of the nine periods, congressional opposition was so
intense that it prompted full judicial retreat: The Jeffersonian
Republican Congress's assault on the Marshall Court's ability to
control its own agenda between 1802 and 1804; Congress's resistance
to the Supreme Court's efforts to constrain Lincoln during the
Civil War; and the Democratic Congress's assault on the
conservative Court's effort to strike down the New Deal between 1935
and 1937.

In another three periods, less intense opposition led the Court to
moderate its views rather than abandon them entirely: the
Jacksonian Democrats' resistance to the Marshall Court's
nationalizing decisions in the 1820s; Congress's assault on the
Warren Court's efforts to defend free speech against the
anti-communist investigations between 1955 and 1959; and Congress's
response to Roe v. Wade between 1977 and 1982.

In the final three periods, the Court maintained its independence
because congressional opposition was diffuse and weak: the Bryan
Democrats' response to the Court's probusiness decisions in the
1890s; the Progressives' response to the Court's striking down
minimum-wage and maximum-hour laws in the 1920s; and the Democratic
Congress's response to the Warren Court's school prayer and
electoral apportionment decisions in the 1960s.

This history suggests that the Court tended to retreat in the face
of congressional opposition only when it was genuinely out of step
with public opinion. That is not the case today. If the historical
pattern holds, the courts are unlikely to wilt before congressional
proposals to strip them of jurisdiction over controversial cases.
Nor are they likely to be intimidated by DeLay's recent attacks on
Justice Anthony Kennedy's "just outrageous" invocation of
international law or Representative Jim Sensenbrenner's recent
suggestion that Congress create an "office of inspector general for
the federal judiciary" to review court decisions. As long as judges
are confident that a majority of the country is behind them, they
will remain steadfast in the face of congressional bullying.

But we are in a dangerous situation when the people's will is better
represented by the Supreme Court than Congress. For most of U.S.
history, the Court looked to Capitol Hill as the most reliable
representative of the people's constitutional views; if Congress no
longer accurately represents the constitutional views of the
majority, the Court will have alarmingly little evidence of what
those views are, aside from fickle public opinion polls, which are
hardly an appropriate basis for judicial decisions. Moreover, Chief
Justice William H. Rehnquist will not serve forever, and, when he
retires, his successor will be chosen by a president who seems more
interested, at the moment, in catering to his social conservative
base than in representing the country as a whole. Over the long
run, however, majorities in the United States always have their
way; and, if they find their political leaders subverting their
wishes, they are likely to demand new ones.

share this article on facebook or twitter print this article