FDR v. the Constitution By Burt Solomon • Walker & Company • 2009 • 352 pages • $27
The Supreme Court and the American Elite By Lucas A. Powe, Jr. • Harvard University Press • 2009 • 432 pages • $29.95
It should have been Barack Obama’s moment. With his hand on Abraham Lincoln’s Bible, he stood waiting to be sworn in as the nation’s first African-American president. A shimmering wave of excitement passed across the Mall as the inaugural ceremony began. As the notes of Appalachian Spring dimmed from the air, he stepped up to history. A nation held its breath.
And then–Chief Justice John Roberts flubbed it. Rather than the elegant, constitutionally compelled oath, Roberts ran over his sentences like a Boy Scout on a first date. National catharsis turned, briefly, to farce.
No enduring harm was done that day, and the oath was re-administered on the next. Yet Roberts’s stumble was a jarring reminder to all Americans of a national political burr: the Supreme Court.
Though the Constitution deems the Court the third co-equal branch, its role in national politics today, and throughout our history, is in fact more circumscribed than most believe. The Court is, without question, capable of casually inflicting tremendous damage on individuals by denying them basic entitlements or remedies on the basis of misplaced loyalties to the supposedly literal meaning of the Constitution’s text. But it is incapable of unsettling core items on the national agenda. Despite liberal fears, the Court will not now, nor would it ever really, derail a presidency. History shows that in confrontations between the Court and the presidency on the core elements of the national agenda, those for which a president is willing to press the public force of his office, the Court will always—yes, always—fold.
That doesn’t mean the Court cannot cause the occupant of the Oval Office considerable discomfort. Twice before in our history, a president has entered office facing enormous challenges, only to be saddled with a Supreme Court inured to the necessities of the hour. Abraham Lincoln confronted secession and civil war, and the question of slavery standing behind them both, yet he inherited a Court that had exacerbated the national divide through its decision in Dred Scott. More than 70 years later, Franklin Roosevelt faced a global financial meltdown owed in part to the casual laissez-faire approach of his predecessor—an ideology that was shared as much, if not more so, by the Court at the time. And yet both Lincoln and Roosevelt won at the end of the day.
Obama likewise faces fiscal and security crises that will require innovative federal regulation and ingenious new cooperation with both the states and other nations. He too is hindered by a five-Justice majority that is instinctively deregulatory and manifestly unsympathetic on questions regarding climate change, civil rights, and a host of other issues. But the Roberts Court shouldn’t be seen as a major potential stumbling block for progressive policymakers. True, whether the Roberts Court will attempt to constrain Obama and the Democratic Congress, and how the president and Congress might respond to any serious Court obstruction, cannot yet be known. But three new books, Brian McGinty’s Lincoln and The Court, Burt Solomon’s FDR v. The Constitution, and Lucas Powe’s The Supreme Court and the American Elite: 1789-2008, suggest that progressives have some cause for optimism, notwithstanding the persisting conservative bloc on the Court–because the Court has never had that much of an effect on a president’s agenda.
Each book eschews hoary idealization of a Court standing Olympian above politics. Each demonstrates that when it comes to keystones of the national agenda, the Court will not resist a political floodtide. And each teaches that presidents confronting a national crisis will tear through judicially created obstructions. For better or worse, ours has never been an originalist Court, but an adaptionist one willing to tack or toe the constitutional line of the elected majority.
The stories recounted by McGinty, a practicing attorney, and Solomon, a National Journal contributing editor, sharply illustrate the surprising limits of judicial influence. McGinty’s account of Lincoln’s battle with the Court is an at times compelling, at times lawyerly narrative of a crucial moment in history (lay readers may want to skip the he-said-he-said accounts of oral arguments before the Court, and many will want to skim the rather orotund biographic sketches of major players). At the time of Lincoln’s first election in 1860, the Court, under Roger Taney, had already landed a grave blow to sectional reconciliation in its infamous Dred Scott decision, which dramatically limited the scope of federal power respecting slavery and entrenched the institution into the fabric of the nation’s organic document. Writing of Dred Scott’s consequences, McGinty echoes the consensus view among historians that “the social and economic life of the nation was disrupted, its political parties were rearranged, its elections were influence, and a bloody war was fought” out of the Court’s unwise effort to settle the debate on slavery.
Conventional wisdom holds that the Court not only contributed to the buildup to the war, but that it also hobbled Lincoln once it began. In 1861, Chief Justice Taney issued an order in a habeas corpus case demanding that Lincoln release a Confederate sympathizer, which strongly suggested his Court would repel expansive views of presidential war power when it came to the South. And while Lincoln eventually made appointments to the bench, at the early stages of the war, it was far from clear that the Court would go along with his prosecution of the war given the predominance of Justices sympathetic to Taney’s view.
Yet the war, and the secession that precipitated it, did not push the Court away from Lincoln. To the contrary, the Court moved to the President’s position. In the so-called Prize cases of 1863, which concerned the seizure of British ships attempting to reach Confederate ports, the Court stepped away from the political boldness of Dred Scott. Along with three of Lincoln’s appointees, two “converted” members of the Dred Scott majority ruled that his blockade of Southern ports fell within his executive powers. The decision was critical to the North’s war efforts; McGinty argues that the opposite result would have exposed the North to possible English or French intervention on the side of the South. It might also have sparked awkward questions about the constitutionality of Lincoln’s other wartime acts.
The Lincoln Administration’s aggressive argument about the scope of independent presidential war powers, notwithstanding the division of war powers in the Constitution, was without firm precedent. In other words, there was more than enough room for the six non-Lincoln justices to decide against him. But by siding with the President, McGinty argues, the Court adapted to the times by stretching “constitutional doctrine to meet the extraordinary exigencies of the crisis, to see issues in a light in which they had never previously seen them, and to judge challenges to government actions by standards they have never previously applied.” Indeed, to an underappreciated extent today, the Prize cases provide an early benchmark for ambitious views of presidential war powers.
On the same day the Prize cases were decided, the Senate confirmed Stephen Field as a tenth justice to the Court. Nowhere does the Constitution stipulate the number of justices who must sit on the Supreme Court, so Lincoln, with Congress’s aid, sought to add one more justice to the Court. Some commentators, including the late Chief Justice William Rehnquist, have argued that this was Lincoln’s attempt to pack the Court and thereby dilute possible limitation on his war powers. If so, the move was unnecessary: The Prize cases showed that the Court was already playing along.
Fast forward seven decades. Confronting a collapsing national economy and growing social unrest, Roosevelt and Congress took extraordinary steps to bring things under control. Through far-reaching intervention into local businesses and agriculture long believed immune from federal regulation, Roosevelt refashioned constitutional doctrine on the ground to justify his action. Economic freedom and states’ rights, the administration argued, had to bow constitutionally to social need. But the Court had, during Roosevelt’s first term, rejected this claim on numerous occasions, based both on an uncharitable reading of Article I’s Commerce Clause and an overly charitable reading of economic liberty.
Like Lincoln before him, Roosevelt would not abide a jurisprudence he considered little more than a paean to a bygone era. “Means must be found to adapt our legal forms and our judicial interpretation to the actual present national needs,” he declared in his 1937 State of the Union speech. Roosevelt chose, like Lincoln, to “pack” the Court. His actions were elaborate, deceptive, and hotly contested. Roosevelt claimed that six judges of the Court, all 70 years old or older, could not keep up with their work load. The Court was falling behind, he claimed, and needed help—in the form of additional justices. But the plan quickly foundered as Congress and the public learned there was, in fact, no judicial backlog. Many New Deal allies, including Justice Louis Brandeis, lined up in opposition. Roosevelt soon backed down.
Most people think the lesson of the court-packing affair was that presidents should not interfere with the Court. In fact, it proves the opposite: Presidential pressure, sooner or later, generally prevails over judicial intransigence. That’s because, by demonstrating the length he would go to reform the bench, Roosevelt managed to dislodge significant chunks of the opposition. Soon after the court-packing scandal broke, Justice Owen Roberts switched his alliance from the laissez-faire wing of the Court to support of the New Deal in West Coast Hotel vs. Parrish, and thereafter remained a reliable New Deal vote. “The reversal was blunt and unembarrassed–and a shock,” Solomon observes.
What caused Robert’s famous “switch in time” (which, as the joke went, “saved nine”)? It wasn’t just Roosevelt, in Solomon’s view. Looking out from the insular world of the Court, Solomon argues, Roberts saw a different America, under pressure from new concerns, and he adapted his thinking to its exigencies much as FDR himself had. As Roberts himself later wrote:
[T]he continuing expansion of federal power with consequent contraction of state powers probably has been inevitable. The founders of the republic envisaged no such economic and other expansion as the nation has experienced. Looking back, it is difficult to see how the Court could have resisted the popular urge for uniform standards throughout the country–for what in effect was a unified economy.”
Roberts, Solomon tells us, bent with the temper of the times “to assure a working democracy safe from the desperation of its people and the ambitions of its leaders.” This, rather than steady opposition to executive and public will, is the Court’s defining quality.
Chief Justice Roberts and President Obama, constitutional scholars both, are no doubt familiar with these famous “switches in time.” Both are canny lawyers and political strategists who know what these events suggest about the limits of judicial activism. The core elements of the president’s national political agenda pivot around the economic recovery, the revival of an effective welfare state (especially in health care), and the restoration of America’s moral and practical leadership in the international sphere—all issues that could easily be litigated before the nation’s highest bench.
It’s unlikely the Court will stand in the way of any of these goals. Consider some of the central issues that might eventually be part of an Obama legislative agenda: the Employee Free Choice Act, which would dramatically alter the operation of union elections, or a nationalization, by either a law or regulation, of the country’s largest financial institutions. Either action would cut directly against the deregulatory instincts of the Roberts Court. But neither, we think, will be blocked. In part, this is due to the existence of a current public consensus on the broad power of the federal government to address national problems. Recall that it was a Republican president who most recently expanded Medicare and pushed through intrusive federal regulation of education, previously a quintessentially local matter. In the past, such settled questions of public opinion have squelched the ideological tendencies of individual Justices to impose their views on a legislative or executive agenda. The Court, having backed down in 1937 in the face of exactly this public sentiment, is unlikely to ride into battle again. As Powe, a law professor at the University of Texas, observes, the Court is a profoundly “majoritarian institution,” staffed by justices “for the most part one-quarter in tune with their times.” The justices, that is, may be tone deaf to Americans’ understandings about the dynamics of work or the expectation of privacy against the police, but they are (usually) acutely sensitive to the risk of popular anger. When heated public sentiments might incite a president to turn against the Court, the Justices always tread lightly.
Some argue that the Court has held sway over the other branches in recent decades through the so-called “federalism revolution,” for instance by limiting or striking down civil rights legislation to correct gender, age, and disability discrimination in deference to states’ rights. But even when it clashed with particular presidents or Congresses, it was also acting in accord with public opinion, which held that the power of the federal government had gone too far. That said, the Court no longer has the wind of public opinion swelling its sails on this issue. Judicial pushback on the growth of the federal government came long after the states’ rights movement on the Hill had dwindled to a shadow of its former self. The Court was acting as a lone rear-guard, pushing on an issue that had long seen the populist tide ebb away from under it. And, Powe explains, the so-called federalism revolution has accomplished little except “random pinpoints,” the practical effect of which “was close to nil.” When Bush pushed for more centralized powers, the Court was silent—not because it agreed with Bush, but because, faced with clear public support for a central national policy, the Court seems to have learned that the best course of action can sometimes be inaction.
Powe’s analysis can be extended to more recent decisions, such as the 2008 opinion in District of Columbia vs. Heller, which found an individual right to bear arms in the Second Amendment for the first time in American history. But the ruling was narrowly written, and what seemed to be a landmark opinion has had surprisingly little effect on other gun laws and other governmental regulations of firearms. Indeed, narrowing language in Justice Scalia’s majority opinion in Heller makes it perfectly clear that the Court will not endorse challenges to gun regulations that have broad popular support—even though these laws should be equally vulnerable to constitutional challenge given the majority’s own logic. In other words, the Court will nip and tuck, but it won’t go near vital organs. It will trim the reach of the federal government by reading statutes narrowly, but it will not involve the reshaping of the Republic’s core policy commitments.
This does not mean the Supreme Court is irrelevant. It will continue to matter on social issues such as abortion, sexual privacy, and equality issues related to sexual orientation. Its opinions in these matters will be of great consequence to millions of people. Many progressives, with good cause, remain deeply concerned about the survival of Roe vs. Wade. They’re right to be worried: With a solid conservative bloc on the Court, we will likely see decisions that chip away at the core right protected in Roe by hedging its invocation with caveats and costs in line with the Court’s ban on “partial-birth” abortions in Gonzales vs. Carhart. Expect to see more decisions about spousal notification and informed consent requirements, which have proliferated at the state level. Expect that sequence of opinions to cut much of the practical life out of Roe, even though they leave the opinion formally intact and on the books. But with a Democratic majority in Congress and a Democrat in the White House, history tells us the Court is unlikely to buck settled public support for core abortion rights. The Court has repeatedly skipped opportunities to go after Roe itself, even under a socially conservative president. It is hard to see how it benefits from doing so now.
The Court will remain a central fixture on the national political stage, even as its influence on our core problems remains curiously minimal. The Roberts Court will nibble away at the Obama agenda without meaningfully dislodging it. So expect more statutory rebuffs followed by congressional corrections. Social and cultural issues that are fodder for law review articles and contemporary campaigns will remain high on the Court’s agenda, and will feed national electoral politics. But Obama’s fate will not be determined by the Court.
What’s clear is that the federal judicial role in America is surprisingly, even willfully, misunderstood. But by paying closer attention to how that role has changed across history, as Powe, Solomon, and McGinty so gracefully do, we can isolate the Court’s few moments of real bravery and reject the senseless braying of critics who fail to grasp the complex function that the Court plays within our democratic order.