Backlash against a conservative Supreme Court?
By Ann Althouse
Here's a piece by Jeremy Buchman in The New Republic arguing that social conservatives will regret it if they get their way and Bush appoints very conservative new Supreme Court Justices. On the assumption that such Justices would radically overturn precedent and resurrect the pre-1937 view of congressional powers, Buchman speculates that the new Court would provoke a backlash that would hurt conservatives the way the backlash against Roe v. Wade hurt liberals.
I doubt that the strong conservatives currently being discussed as potential nominees would overturn settled expectations as much as Buchman predicts, but of course it is necessary for him to posit extreme changes before the warning about political backlash seems plausible, because federalism-based limitations on Congress are not something that tends to stir up ordinary voters -- certainly not the way abortion did.
DAILY EXPRESS
Pyrrhic Victory
by Jeremy Buchman
Political observers have been buzzing over the prospect of Chief Justice William Rehnquist resigning. But the real opportunity for President Bush to alter the Court's ideological balance will come when one of Rehnquist's more liberal colleagues steps down. Indeed, with three associate justices over 70 years old, and only one (Clarence Thomas) under 65, the Court's ideological makeup could change dramatically during the next several years. Cultural conservatives are downright giddy about that possibility, and since the election they have hardly been shy about making clear what they expect from Bush: predictable conservatives, i.e., nominees who resemble Clarence Thomas, not David Souter. Such jurists, they believe, are necessary to lock in conservative policies beyond the next four years; as Gary Bauer recently told Newsweek, "Bush's legacy can be easily neutralized if he's unable to change the courts."
But conservatives should beware the possibility that their wishes will be fulfilled. Professions of belief in judicial restraint to the contrary, many conservative judges are no less prone to activism than their liberal counterparts. And, as Democrats have learned during the decades since Roe v. Wade, activism in the judicial arena can backfire badly in the realm of electoral politics.
For Democrats, it was judicial overreach on the issue of abortion that caused the most enduring, and damaging, electoral backlash. For Republicans, it could be the fondness of conservative jurists for what Judge Douglas Ginsburg once dubbed the "Constitution in Exile" that might eventually provoke a political reaction. According to Ginsburg, who coined the phrase in a 1995 article for Regulation magazine, the Constitution in Exile comprises a bundle of legal doctrines that were discarded when the Supreme Court began to acquiesce to the New Deal in 1937. These doctrines include a narrow interpretation of Congress's power to regulate interstate commerce; strong limits on Congress's authority to delegate rulemaking power to administrative agencies; and substantial solicitude for protecting property rights through the Fifth Amendment's takings clause. Taken together, they embody a more limited role for the national government in regulating economic matters, a role that would have seemed natural to legal observers a century ago but would seem revolutionary, or perhaps reactionary, to most Americans now.
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Is the advancement of this agenda likely to become conservatives' Roe? On the surface, the comparison appears imperfect: Abortion is a key political issue for substantial segments of the electorate, while the mention of federalism draws blank stares from many political science majors, never mind the country at large. But this difference results from the fact that the debate over federalism has occurred on a more abstract plane than the debate over abortion. If the public debate over abortion were conducted mostly on the level of whether the Constitution includes an implicit right to privacy, it too would fail to command attention. Were Bush to appoint several hard-line conservatives to the Court, and were those justices to join Scalia and Thomas in pushing the Constitution in Exile, the abstractions of federalism and separation-of-powers doctrine could very quickly translate into concrete, unpopular policy choices.
That's because resurrecting pre-1937 readings of the commerce clause and the nondelegation doctrine would jeopardize a vast range of federal policies enjoying widespread public support. These include such economic policies as the minimum wage, workplace safety regulations, and protections for organized labor, as well as civil rights laws passed by Congress under its authority to regulate interstate commerce, such as the 1964 Civil Rights Act and the Americans with Disabilities Act. Moreover, a return to pre-New Deal understandings would fundamentally upset current arrangements governing relations among the branches of the national government, jeopardizing the functioning of the modern administrative state.
The legal agenda of potential Bush appointees would therefore become politically perilous as abstract constitutional doctrines became associated with unpopular policies. The public's occasional agitations over perceived excesses in enforcement of civil rights laws or environmental and workplace regulation should not be mistaken for an abandonment of Americans' commitment to these sorts of measures. The public largely takes for granted mandatory overtime pay, clean air and water, and discrimination-free workplaces, and some of those protections could be weakened if left to the mercy of state legislatures. Conservative jurists and supporters risk producing their own Roe if they insist on reversing almost 70 years of constitutional understandings.
A more strategic approach might enable conservatives to advance their goals while minimizing the likelihood of voter backlash. The model here is Sandra Day O'Connor's 1992 opinion in Planned Parenthood v. Casey, where she, Anthony Kennedy, and David Souter declined their conservative colleagues' invitation to overturn Roe directly. Instead, their opinion defended Roe's protection of reproductive choice while jettisoning its trimester framework and upholding most of the restrictive Pennsylvania law at issue. The Court left Roe in place, but gave states leeway to impose more stringent restrictions on abortion; in compromising, it may well have diffused abortion as an election-year issue. Similarly, a conservative Court that left core New Deal precedents standing while continuing to nibble at the margins could achieve many of its goals without stirring electoral opposition, thereby avoiding the political retaliation that followed Roe.
But if the post-election chest-beating of social conservatives--for instance, over Arlen Specter's accession to the Judiciary Committee's chairmanship--provides any indication, they aren't going to let the Bush administration settle for half a loaf. And perhaps the administration, flush with victory, has no interest in settling for half a loaf anyway; as Jeffrey Rosen wrote before the election, Bush advisers seem intent on appointing justices who are sympathetic to the Constitution in Exile. Administration officials and social conservatives may well believe that favorable Supreme Court rulings that advance key components of their agenda are worth the possibility of political backlash; Roe, after all, despite the controversy it engendered, did do more to advance abortion rights than could have been achieved through legislation alone--and some pro-choice liberals would still, even with the benefit of hindsight, no doubt say that the political tradeoff, however severe, was worth the cost.
And yet, it would be ironic if cultural conservatives, who coalesced as a movement largely around opposition to liberal Supreme Court rulings, were to force Bush to appoint justices whose rulings triggered an analogous political reaction on the left. Bauer may believe that "Bush's legacy can be easily neutralized if he's unable to change the courts." But the truth is, his legacy might be even more endangered if he does manage to change them.
Jeremy Buchman is assistant professor of political science at the C.W. Post Campus of Long Island University, and the author of Drawing Lines in Quicksand: Courts, Legislatures, and Redistricting (Peter Lang, 2003) |
