The Federal Courts and Elections
Introduction
Recently, Supreme Court Justice Ruth Bader Ginsberg discovered that she had cancer of the pancreas. Although apparently medical care has restored her to health, we continue to be concerned for her and, importantly, what kinds of decisions any replacement for her might make.
The average American pays little attention to the justice system until he gets a traffic citation or a summons to jury duty. He may be somewhat more interested in decisions of the Supreme Court, if only because the high court’s decisions are reported in our major media. Perhaps we should be more mindfulof the impact the decisions of federal judges can have on our lives, our freedom and our families.
Picture a United States without such long-established protections as child labor laws, social security, freedom to organize labor unions, and reproductive rights. Picture an America which no longer guarantees the civil rights of minorities, the employment rights of the disabled, the right of workers to a minimum wage, the right of every child to a free public education. None of these existed at the beginning of the twentieth century. All of them are in danger of being lost.
The goal of reversing the national government’s role as a centralizing progressive force has long been part of the conservative agenda. President Bush turns to the Federalist Society for Law and Public Policy Studies in evaluating prospective judges. Supporters of the Federalist Society are well-known for their opposition to change and their orthodox views.
The early Federalists were an eighteenth century political group which advocated a strong central government. Alexander Hamilton was notable among their supporters. They were opposed by the Democratic Republicans, exemplified by Thomas Jefferson and James Madison.The two groups – Federalist and the Democratic Republicans – both supported “liberty,” but described liberty in differing ways. While Alexander Hamilton stressed the secure rights of property as defining freedom, Madison and Jefferson attached equal importance to the rights of the individual to act in accordance with his own individual values and to be free to participate fully in society.
In 1803, John Marshall, Chief Justice of the Supreme Court, appointed by Federalist President John Adams, made the claim for the first time that judges possess the power to strike down any law they believe to be contrary to the Constitution. In effect, Marshall contended that the law meant whatever the Court said it meant. Jefferson and Madison disagreed. They saw the Court as one of three co-equal branches of government answerable ultimately to the voters. But Marshall’s claim persisted and the Court still enjoys the privilege of interpreting out of existence any act of Congress, or portion thereof, that they see fit.
What is worse, justices of the Supreme Court, together with all judges of federal courts, are appointed for life and are not required to justify their decisions. Nor can they be removed from office except by impeachment, unlike members of Congress or the President who can be replaced by election.
Franklin D. Roosevelt who became president three years into the Great Depression, proposed a series of initiatives which came to be called the New Deal. It was during the New Deal era that unions achieved legal status,; a minimum wage and a 40 hour week was set; child labor was outlawed; and the Social Security Act was passed. The New Deal was designed to boost the economy, put Americans back to work and use government regulation to curb the excesses of laissez-faire economics.
By 1935, the first laws of the New Deal had been challenged and had come to the Supreme Court. The justices struck down the National Recovery Act, the Farm Mortgage Foreclosure Act and other components of Roosevelt’s recovery plan. While the public supported FDR’s initiatives, the justices viewed them as dangerous. During his time in office, however, FDR had the opportunity to appoint nine justices. In the long run, the major components of the New Deal were upheld and the government’s right to act on matters of national concern were no longer questioned.
Until now.
George W. Bush has appointed young judges to the circuit courts and it is from these courts that justices to the Supreme Court usually come, having now been vetted by the Federalist Society. Seven of the twelve circuit courts are presently dominated by conservatives who uphold the administration’s agenda on everything from religion to reproductive rights. Since some of these circuit court judges have been elevated to the Supreme Court, they have joined Clarence Thomas and Antonin Scalia in controlling direction of the high court not only for our own lifetimes, but for those of our children.
To understand the seriousness of the present threat, we need to realize how gains in the fields of civil rights, health, education, family planning and environmental protection could be lost in a few decisions by a majority of these “new federalists.”
In a 1995 case, United States v. Lopez, the five justices who decided Bush v. Gore ruled that Congress’s power to regulate interstate commerce did not allow it to pass the Gun Free School Zones Act of 1990 which forbade possession of a firearm within 1,000 feet of a school. In Lopez, then chief Justice Rehnquist stated that his intention was to make certain that such a solution to the problem of school violence did not establish a precedent for “direct federal regulation of the educational process, such as a mandated federal curriculum for local elementary and secondary schools.
Another decision which underscores the way an ultra-conservative federal judiciary can affect our lives is Board of Trustees of the University of Alabama v. Garrett. This one disallowed the application of the Americans with Disabilities Act to state employees on the grounds that the federal government cannot intrude on state sovereignty in order to enforce the Fourteenth Amendment. They also invalidated parts of the Violence Against Women Act and a portion of the Brady Handgun Violence Prevention Act.
These decisions seem to indicate that the conservative majority is philosophically inclined to preserve states rights by limiting what the national government can do and that the “new Federalism” differs from the “old Federalism” of the early days of our nation in that instead of approving increased control for the national government, it turns back more authority to the states.
However, the majority was and still is inconsistent. In Bush v. Gore, the five member majority reversed the order of the Florida Supreme Court that under-votes be counted, effectively handing the election to George W. Bush. In other actions, they invalidated Massachusetts law which regulated tobacco advertising in areas frequented by kids and an Illinois law providing for an independent medical review of denials of benefits by HMOs.
So much for states rights. As Richard Briffault, vice dean at Columbia Law School put it, “the preemption cases indicated that the Court’s commitment to federalism is highly erratic.” And writer Cass Sunstein, the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago Law School, stated that, “On the central issues of the day, many conservative judges seem to think that the Constitution should be interpreted to overlap with the latest Republican party platform.”
Former Chief Justice Rehnquist has been replaced by John Roberts, who is at least as conservative as Rehnquist. Sandra Day Connor, who was somewhat more moderate and respectful of precedent than the other conservatives, has retired. In her place, is Samuel Alito. Both of the new members of the court were appointed by George W. Bush who, true to his ideology, picked two more right wing jurists. The court majority has become even more strongly tilted rightward.
Liberals fear that the ascension of two more Federalists – or whatever they are – together with Scalia, Thomas and Kennedy will roll back many of the laws that have improved the lives of ordinary citizens for the past sixty years.
Liberals are appalled when we contemplate the damage – the radical destructive changes – this kind of majority is causing. As we could have predicted, the changes have the most severe impact on those most vulnerable – poor people, minorities, women, the very old, the very young – the already powerless and disenfranchised.
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