Out of Order

by Jeffrey Rosen | May 30, 2005

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.

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