A Stitch in Haste

One historian says maybe:

When a majority of Supreme Court justices adopt a manifestly ideological agenda, it plunges the court into the vortex of American politics. If the Roberts court has entered voluntarily what Justice Felix Frankfurter once called the "political thicket," it may require a political solution to set it straight.
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Still, there is nothing sacrosanct about having nine justices on the Supreme Court. Roosevelt's 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike.

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two.

Of course, "hallowed" is a conclusory, and in my view absurd, way to describe the politicization of the size of the Supreme Court.

I wonder: Exactly how less radical (and vindictive) would FDR's court-packing plan had to have been to move from "chicanery" to "hallowed"?

Keep in mind, meanwhile, that the only reason that a court "plunges into the vortex of American politics" is because American politics leaves the judiciary no other choice. Stated differently, there can be no "activist judges" without "activist legislators" passing controversial laws that often do not reflect "popular values."

And of course the only reason we have partisan politics, anywhere in government, is precisely because "popular values" is a chimera. We are not carbon copies of each other. The fact that some people think that's a problem in need of correction, by government fiat if necessary, is precisely why judicial independence is so vitally important to a free society.

Bottom line: The potential precariousness of judicial independence is yet another reason why the only truly trustworthy check-and-balance is "gridlock."

I would rather see the Supreme Court occasionally make the wrong decision for the right reason (i.e., judicial independence) than make the right decision for the wrong reason (i.e., fear of political reprisal). The reason is precisely because the former is far more likely to be the aberration, and the former can be far more easily corrected by later Courts in later decisions. Even with decisions like the ones we're now seeing, I will never fear stare decisis more than I fear Congress.

To mislabel unbridled majoritarianism as an appeal to the fiction of "popular values" has been the disgraceful tactic of radical social conservatives throughout the Bush administration. How woefully sad it would be if the Democrats of 2009 corrupted themselves in the same manner.

Isn't nominate-and-confirm enough? Must every nook and cranny of government be infested and infected with the moral defectiveness of the politician mindset? Can't anyone, not even Supreme Court justices, be allowed to rise above petty politics?

More thoughts at Distributed Intelligence.

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I actually wrote this post before the news today that Chief Justice Roberts had a seizure. Yet another reminder that the composition of the Court should not be toyed with flippantly. Diamond and I wish him a speedy and uneventful recovery.

Question: Which radical conservative politician invented the insolent canard of "activist judges"?

Answer: This radical conservative politician:

The Court in addition to the proper use of its judicial functions has improperly set itself up as a third house of the Congress — a super-legislature, as one of the justices has called it — reading into the Constitution words and implications which are not there, and which were never intended to be there.
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I want — as all Americans want — an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by the arbitrary exercise of judicial power — in other words by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts which are universally recognized.

--Franklin Delano Roosevelt, "Fireside Chat," March 9, 1937

It's quite simple really: To moral defective politicians, especially those who are obsessed with quashing liberty, an "activist judge" is merely one who rules against you. Political or jurisprudential philosophy has exactly nothing to do with it.

Meanwhile, if we had had "a Supreme Court that will enforce the Constitution as written," then FDR would never have been able to put the country in an economic wheelchair for a decade and Congress would never have reinvented itself into a "super-legislature" constantly engaged in the "arbitrary exercise of power."

It is the solemn duty of judges to stand athwart yelling "Stop!" And there is never any truthful, or sane, basis to fear judges more than politicians.

Kip's Law: Every advocate of central planning always -- always -- envisions himself as the central planner.

(Via Dorf on Law.)

If you could condense everything I've ever written on this blog into one succinct passage, it would come out something like this:

First, democracy requires judicial supervision to thwart the excesses of elected officials. Second, governments closest to the people are — never mind what sentimentalists say — often the worst.

Whether that says more about me or about the person who actually wrote that succinct passage is unclear.

Meanwhile, if you could condense everything I've ever written on this blog into one succinct passage, plus one footnote, that footnote would come out something like this:

P.S. Ron Paul is not a libertarian —

[Dale] Bell, 58, who served in the Reagan administration, calls himself "a Ron Paul guy."

Under Ron Paul's theory of unbridled anti-federalist majoritarianism, the "fiefdom" (Will's term) of Pinal County, Arizona*, would be perfectly within its "states' rights" authority to ban dancing in Bell's restaurant, the controversy at issue in Will's column.

For those curious about the fact pattern:

The question concerns statutory interpretation. The statute includes "dance hall" — along with bowling alleys, penny arcades, skating rinks and other things — among the "amusement or recreational" enterprises that must be "within a completely enclosed structure." Does Bell's restaurant, which makes 99.75 percent of its revenue from food and drink (the rest comes from pool tables and trinkets) become an illegal (because not completely enclosed) dance hall when someone rises to "sway, shuffle or even dance"?
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The 14th Amendment's guarantees of equal protection and due process of law should mean that government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means. Under today's weak "rational basis" standard, courts validate virtually any abridgement of economic liberty, no matter how tenuous the connection to even a minor public purpose. Conservatives, note well: Restoring economic liberty requires a kind of judicial activism — judges judging rather than merely ratifying government's caprices.

Or as I have put it:

I will never — never — be more afraid of judges than of politicians. And I will always — always — be afraid of those who are.

Incidentally, can you guess which other fiefdom has declared a very similar "War on Dancing"?

I would refine Will's analysis only to note that the Fourteenth Amendment is meant to restrict, not "government" writ large but states specifically — as well as their subordinate units (cities and towns, counties, school districts, etc.) — and to emphasize that there is no fundamental difference between having one's rights violated by Congress, a state legislature, a town council or a school board. A local majority can be just as tyrannical — perhaps more so — than a national majority. That was the whole idea behind Will's second point at the beginning of this post.

That was also supposed to be the great charge of the Fourteenth Amendment — the "new birth of freedom" that has mostly proven to be stillborn.

More thoughts at Hit & Run.

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*When did Arizona stop being "Goldwater country"? Can it be traced to Sandra Day O'Connor ("the only former legislator on the Supreme Court"), to John McCain ("loyal foot soldier in the Reagan Revolution"), both or neither? (But cf., Jeff Flake.)