The Right Opinion

Disdain All Around

By George Will · Dec. 30, 2012

WASHINGTON – While accusing the Supreme Court's conservative justices of “disdain for democracy,” Pamela S. Karlan proves herself talented at dispensing disdain. The Stanford law professor is, however, less talented at her chosen task of presenting a coherent understanding of judicial review. Still, her “Democracy and Disdain” in the November Harvard Law Review usefully illustrates progressivism's consistent disdain for the Founders' project of limiting government.

The primary focus of her displeasure is, remarkably, Chief Justice John Roberts' opinion mostly upholding Obamacare. But she begins by being appalled at Justice Antonin Scalia's suggestion that the lopsided majorities by which Congress in 2006 extended Section 5 of the 1965 Voting Rights Act were “a reason not for deference, but for suspicion.” Well.

That section requires some Southern states and other jurisdictions to seek Justice Department permission to make even minor changes in voting procedures. This was a justifiable infringement of federalism in 1965. But in 2006, when blacks were registering and voting at higher rates than whites in some covered states, Congress extended the act until 2031 using voting information from 1972. Surely Scalia was correct that Congress, indifferent to evidence, continued to sacrifice federalism merely to make a political gesture. The Roberts court was excessively deferential in not overturning Section 5 in a 2009 case, when it merely urged Congress to reconsider the section.

Karlan's disdain for the Citizens United decision – which held that Americans do not forfeit their First Amendment rights when they choose to speak collectively through corporate entities – is muddled. She denounces “spending by outside groups” without explaining what they are outside of. Evidently she accepts the self-interested assumption of the political class – the parties and candidates – that elections are their property and independent participants are trespassers. Karlan approvingly quotes Justices Ruth Bader Ginsburg's and Stephen Breyer's unsubstantiated assertion – itself disdainful of elected officials to whom Karlan urges vast deference – that contributions “buy candidates' allegiance.” She seems unaware that abundant social science demonstrates that contributors respond to candidates' behavior, not the reverse. And when darkly warning about campaign contributions from corporations' “management,” she seems unaware that much of the corporate political spending is by nonprofit advocacy corporations – Planned Parenthood, not Microsoft.

It is, however, the court's health care decision that she thinks especially reveals “disrespect for, and exasperation with, Congress.” Even though Roberts upheld the crucial provision – the mandate – he did so with what Karlan considers a faulty attitude. His opinion was “grudging” in finding that, although Congress flinched from calling the mandate a tax, the law could be saved by calling it this.

Karlan is very difficult to please. Roberts rescued Congress' handiwork from Congress' clumsy legislative craftsmanship, and still she complains because in doing so Roberts inevitably made “a thinly veiled critique of Congress.” Which Karlan seems to consider lese-majeste. “He conveyed disdain even as he upheld the Act,” thereby revealing the conservative justices' “premise of distrust” toward Congress. They are in good company: James Madison warned of Congress “everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” But prudent wariness about Congress is not tantamount to disdain for it or democracy.

Today's American public does not share Karlan's nostalgia for the Warren court, which she says was “optimistic about the possibility of politics.” Karlan subscribes to the progressive axiom that the cure for the ills of democracy is democracy, meaning elections. She sees little need for courts to protect against what the Founders' feared – liberty-threatening excesses of majorities. With a true progressive's impatience with the crux of the Constitution, the separation of powers, Karlan wants the court to consider Congress “a full partner in seeking to address the nation's pressing problems.” But often our institutions preserve liberty by being rivals rather than collaborators.

She abhors the conservative justices' “combination of institutional distrust – the court is better at determining constitutional meaning – and substantive distrust – congressional power must be held in check.” Clearly she thinks Congress would be “better” at judging the limits of its own power. This fits her assumption that restraints on its power are presumptively anti-democratic.

She concludes: “For if the justices disdain us, how ought we to respond?” Her pronoun radiates democratic sentimentality – “us” conflates the citizenry and Congress. Today, just 18 percent of the citizenry approves of Congress' performance. What becomes of Karlan's argument when the conservative justices' distrust of Congress, for which she disdains them as anti-democratic, is exceeded by the public's distrust of Congress?

© 2012, Washington Post Writers Group

Appeal_patriots_day_4
13 Comments

Tod the tool guy in brooklyn ny said:

"But our institutions preserve liberty by being rivals rather than collaborators" is a salient point, imagine if the Supreme Court decides to legislate, rather than interpret laws, for Constitutional muster? Infanticide is wrong, and liberals try to water down good morality. Gay marriage is wrong , and liberals keep " thrusting IT" in our FACES. Marriage belongs to the States. I watched a Karlan video, and now want to vomit!

Sunday, December 30, 2012 at 6:27 AM

Ct-Tom in NC said:

Bottom line is that socialists area uncomfortable with (and disdain) the Constitution. And I have to say, they are doing a pretty good job of ignoring it.

Sunday, December 30, 2012 at 9:38 AM

Capt. Call in New Mexico said:

What Tod mentions is just the problem! The Supreme Court has been legislating for more than a century! How do we (the people) curtail this abuse of power? How do we reign-in the Court?
Perhaps by an Constitutional Amendment eliminating life-time appointments; perhaps by an Amendment requiring the Court to use the basis of "original intent" instead of their own personal views, when making decisions.

Sunday, December 30, 2012 at 9:52 AM

M Rick Timms MD in Georgia replied:

"How do we reign in the Court?" The problem is "us", We The People, who just elected a socialist bent on continuing his destruction of capitalism.
Obama will likely have a chance to push the Court further to the left, and more toward a "living" Constitution, with malleable interpretations that allow the Federal government to run every aspect of our daily lives.

Americans have been dumbed down in public schools, and have no understanding of the Constitution, so the man on the street thinks that "equal opportunity" is the same as "equality of outcome" guaranteed by the Feds ( ObamaCare, ObamaPhone, ObamaJob?, etc., included).

The interpretation of the Commerce Clause, to include all business across State Lines has unleashed the Federal Behemoth, and it must be stopped. I simply do not know how, other that to repair that defect in the Constitution when we rebuild it after the coming collapse.

I downloaded the "Affordable Care Act", and tried to read through just the Table of Contents. The amount of regulation and interference in the daily lives of Americans is astounding. There is simply NO place for such an outrageous attack on American Liberty. This Bill must not stand. It must be challenged on multiple fronts, including the illegality of the manner in which it was passed - as a budget reconciliation bill. But then again, what would the Court decide, now that it appears that they are willing to re-write the Bill at the Supreme Court, changing the terms of the Bill themselves to make it meet the "new "Constitutional" muster, perhaps to curry favor with Congress and avoid a label of "Activist Court".

Roberts apparently thinks declaring a bad bill unconstitutional makes him an activist, but rewriting and redefining the key terms of the damn thing himself does not....Heaven help us...

Sunday, December 30, 2012 at 3:19 PM

Capt. Call in New Mexico replied:

"Obama will likely have a chance to push the Court further to the left, and more toward a "living" Constitution, with malleable interpretations that allow the Federal government to run every aspect of our daily lives."

What do you mean "likely"?? This was virtually assured by Obama's re-election!

As someone else has mentioned, the Supreme Court HAS been legislating for more than a century. When the Obama appoints more Justices to the Supreme Court, there will be no stopping the Kenyan usurper. If we aren't finished already, we will be then, because they will "rubber stamp" everything He decrees for us, while giving themselves a pass.

Tuesday, January 1, 2013 at 9:47 PM

p3orion in Midland, Georgia replied:

I seriously doubt that such an amendment (requiring that judges rule by original intent) is possible. The trouble is that our judicial system is no longer (or never was) based on the intent of the Constitution's writers, but on "stare decisis," or "precedent. Maddeningly, in considering at the constitutionality of a law, the Constitution is not considered, but only previous decisions of other courts.

This is, I suppose, based on some ill-conceived notion of "professional courtesy," but denies the very real fact that many of the judges making those precedence-setting rulings were complete ignoramuses. More troubling is the fact that because of their disdain for the Constitution in general and preference for a "living" version of that document, it is more often liberal judges who will depart from clear intent and instead legislate from the bench.

I can appreciate SCOTUS's reluctance to reconsider Constitutionally every decision every time, and instead fall back on the shorthand of what some previous court decided, but the cumulative effect of multiple decisions, each only a little departed from the precedent on which it is based, is a drastic departure from the clear intent of the founders.

The result of this is that the legal framework of our nation gradually "evolves" in directions that are legally defensible under stare decisis, but logically and morally indefensible, each pushing back the boundaries just a bit further, often in ways that would have astonished the writers of the decisions on which they were based.

It is by this process that we find rulings based on "penumbras" of rights that are only "implied" by the Constitution: the "right" to abortion was based on the right of privacy implied by the Bill of Rights. The problem is that without some limiting basis for decisions, even gradual change ends in major departures from what anyone envisioned: gay rights have led to gay marriage; once that is firmly entrenched in law, on what logical or legal basis will polygamy or bestiality be denied?

Thursday, January 3, 2013 at 9:12 AM

Jay in FL said:

Was it not congress which disdained the American people, who elected them to represent them, by neither reading nor debating in the light of day the health care bill?

Sunday, December 30, 2012 at 3:22 PM

JDB Esq in CA/VA said:

The problem with politics is politicians (which, I suppose, is like saying the problem with humanity is humans).

Sunday, December 30, 2012 at 3:36 PM

Wayne in Hinesville, GA said:

I fault the moderate Republicans as well as the Democrats for the "Afforable Heathcare Act" by not reading the bill before voting for it. Piglosi uttered the most assinine statement ever by an elected official when she said they had to pass it in order to find out what was in it.

Sunday, December 30, 2012 at 5:55 PM

Dave in Harrisburg, PA replied:

Well, we're finding out more of what's in it every day. And it keeps getting worse and worse.

Sunday, December 30, 2012 at 8:08 PM

Tapdaddy in Indiana said:

In reading, The 5000 Year Leap the greatest thing I took from that book is that the greatest thing that our Constitution does for us is to protect Americans from our government because men have not changed. Those in power, if given the chance will abuse that power, regardless of who gets hurt or killed.

Monday, December 31, 2012 at 8:19 PM

Capt. Call in New Mexico replied:

That is exactly right! Men, while capable of minor moral reforms in their own lives for whatever reasons entertain them, cannot solve the problem of the sinful nature of mankind by any means. Only total surrender to Yahshua ha a Messiach and being born again through His shed blood can change the nature of men from evil to good.
[Romans 3:23, 6:23; Isaiah 53:6; Jeremiah 17:9]

Tuesday, January 1, 2013 at 10:01 PM

p3orion in Midland, Georgia said:

When I see the wonders that can emerge from Washington when both sides of the aisle abandon their ideologies and work together, one phrase comes to mind:
"Thank God for gridlock!"

Thursday, January 3, 2013 at 8:48 AM