Leftists and the Roberts Court

Every so often, I like to read articles in liberal publications in the hopes of gaining some understanding of how the Leftist mind works.  Granted, it is a tough task and Ann Coulter may be most correct in her analysis.  A recent article in The National Journal by Norm Ornstein titled “Is It Time to Give Term Limits to Supreme Court Justices?” is illustrative of the problem with those on the Left.

He starts by using the example of Brown v. Board of Education and how Chief Justice Earl Warren built consensus over two terms to create a 9-0 decision.  Leaving aside this history, the article goes on to state how the Roberts Court is the exact opposite and then makes the quantum leap in logic that had the Roberts Court been presented with the same set of facts as those presented in Brown they likely would have upheld segregation in public schools..  Although he cites that the “divisiveness” on the Court among political ideologies started before Roberts became Chief Justice, he then qualifies: “…but his leadership has sharpened the  divisions much more.”  It should come as no surprise to anyone who was watched or studied the Supreme Court that ideological and political divisions have always existed on the Supreme Court.  Ornstein should refer to history before making these statements. 

The one striking thing about this article is who Ornstein cites as evidence to back up his claims.  He uses previous articles by writers from The New York Times, This Week, and the Atlantic- all of which are certainly Left-leaning biased outlets.  For example, one of these cited articles asserts that the polarization on the Court mirrors that in Congress.  That is, the Right wing has moved “dramatically” to the right while the Left wing has” inched” a little to the Left.  Put another way, the “fault” for the polarization lies on the Right side.  Furthermore, Ornstein notes the number of 9-0 or 8-1 decisions under Roberts, but then summarily dismisses them as if they are unimportant cases.  In the current term, 78% of all cases decided so far have fallen in this category.  Since Roberts has become Chief Justice, nearly 60% of all decisions have been 8-1 or 9-0.  Those percentages increase when you throw in the 7-2 decisions which I propose is not that different from an 8-1 decision.  Instead, the real problem the Left has with the Roberts Court lies not in stark statistics, but in decisions rendered in certain areas- voting rights, campaign finance and religion.

There is one statement in Ornstein’s article that seems to sum up the whole problem on the Left when it comes to the Supreme Court these days:

As politics have become more polarized and as the two-party competition has intensified, control of the courts- which are increasingly making major policy decisions– became more important. [Emphasis added]

That is the big problem right there and something that separates the conservative from the liberal.  Where in the United States Constitution are the courts tasked with the job of “making major policy decisions?”  This trend began under the administration of Franklin Roosevelt with his court-packing scheme and resulting rubber stamping of New Deal legislation.  It continued after World War II with the Brown decision.   It happened in the 1970s with Roe v. Wade and it is happening now with gay marriage. As I noted in a previous article, at the time Brown was not that big of a deal and only later attained notoriety.  Civil rights in general and Brown in particular played little role in the 1956 or 1960 presidential elections.

Ornstein intimates that the current Court is “cloistered” since none of them have ever served in elected office.  In other words, in the mind of the Left wing, it is silly to have…well, judges sit on the Supreme Court.  So none of the current members of the Court have served in elected office.  Yes, and all are over the age of 50 and only three are women.  And guess what?  There are no Protestants either.  And I bet some may even have gray hair or be balding.  Oh… and the only African-American is dismissed as an Uncle Tom so he doesn’t really count and there are no Hispanics or Asians on the Court.  Does having some elected office on your resume make you a better Supreme Court Justice?  The Supreme Court should be composed of principled, reasoned legal minds, not retreaded politicians from the ranks of elected office.

Ornstein further states:

That is not to say that all the Justices are naïve (although Anthony Kennedy’s decision in Citizens United, blithely dismissing the idea that there could be any corruption in campaign money spent independently in campaigns, was the epitome of naivete).  Roberts is political in the most Machiavellian sense…”

One assumes from the first part of that statement that Ornstein believes that the Liberal wing of the Court is not naïve, only the right wing…and Kennedy.  The Citizens United decision sticks in the craw of the Left even though they have certainly benefited from it.  To hear them talk, it is only conservative organizations (and corporations) which have reaped the benefits of that decision although the Center for Responsive Politics does a great job at tracking money and invariably it is Left wing organizations and groups who spend the most in elections.  And regarding Kennedy’s naivete, can Ornstein name one single example of an independent expenditure corrupting an elected politician or candidate?  Do the big donors get a seat at the table more often?  If so, that has been going on since the 19th century, but Obama has elevated it to an art form.  Ornstein seems to suffer from the same ailment that afflicts Harry Reid- KBPS (Koch Brother Paranoia Syndrome).  I have made this point before and I will make it again: the money follows the position; the position does not follow the money in campaigns.

He chastises the Court because they overturn laws passed by Congress (something that has been going on since Marbury vs. Madison) and “checking presidential authority.”  Regarding the first accusation, a great many of the Court’s cases involve not constitutional issues with laws, but statutory interpretation.  Sloppily worded or ambiguous laws lend themselves to review and create confusion between the different circuit courts of appeal, which is a great recipe to get your case before the Supreme Court.  Perhaps if the laws were better worded, there would be no ambiguity and confusion.  Even better, maybe Congress should not be brushing off so much power into the hands of Executive Branch unelected bureaucrats.  As a perfect example, can you say “Affordable Care Act?”  Regarding presidential authority, all one needs to do is read an old tome by Arthur Schlesinger called “The Imperial Presidency” to see how presidential authority has expanded over time.  Our Founders never intended for this imperial presidency, or in the case of Obama, borderline fascist dictatorship.  Thus, although Ornstein would think differently, the Court is doing its job here.   It is obvious that Ornstein would not care about this checking of presidential power if the president were named Bush or Reagan.

His solution is to have an 18-year term limit for Justices that would be staggered.  This way, each president would have two nominations per term…at a minimum.  He does not account for voluntary retirements and death.  He says it would also create a Court that “more accurately reflects the changes and judgments of the society.”  Again, that is not the role of the Supreme Court to “reflect the changes and judgments of society.”  The words of the Constitution and the historical reasoning for those words have not changed- except through the amendment process- since our founding.  That is what the Supreme Court is supposed to interpret, not be some Solomonic judge of society’s changes and judgments.  We have two other branches of government charged with that task.  Ornstein obviously makes this proposal with an eye on the electoral map which favors the Democrats in presidential elections.  Hence, he is just playing a game of probability in the hopes that the Court will one day be composed of nothing but liberals.  Even still, did Eisenhower know that Warren and Brennan would turn into flaming liberals?  Did George H.W. Bush know that Souter would follow in Brennan’s footsteps ideologically?

In the end, Ornstein displays classic Leftist psychological projection by asserting that the current Court is “cloistered,” coming only from the ranks of the judiciary with no real-world experience.  At the same time, Ornstein himself makes his argument from a different cloister- that of Leftist thought.  And in the end, Ann Coulter is correct- never trust a liberal over three.