A Brewing Court Battle
Appeared in Newsweek's March 23, 2009 issue.
As they charge through the eventful first 100 days, President Obama and his allies are racking up legislative victories. Soon they will have to win the votes of a new audience: men and women in black robes. As the former constitutional-law professor surely knows, that can be a tough crowd. Here's the core constitutional fact: a progressive president and Congress now face a conservative judiciary, for the first time since 1937. Obama's ambitious agenda, if enacted, must go before federal courts—where judges can rewrite or strike down key provisions. From the TARP bank bailout, to climate change "cap and trade," to health-care reform, new laws could face an array of judicial doctrines recently honed by conservative lawyers. We can't know for sure, and carefully crafted laws usually withstand judicial scrutiny. Still, imagine if Hillarycare had passed in 1994. Does anyone think the Rehnquist Court would not have vivisected those parts it found unpalatable?
In fact, for most American of history, this alignment has been the norm. From the time Thomas Jefferson faced an array of Federalist judges, the unelected third branch has tended to be more conservative, more protective of private property, than the elected branches. ("The Federalists have retired into the judiciary as a stronghold," he moaned.) In the early 20th century, the Supreme Court blocked Progressive Era laws, such as the minimum wage for women and limitations on working hours. It began to strike down key New Deal laws, too, until Franklin Roosevelt threatened to pack the bench by expanding the number of justices. When the court abruptly started to uphold FDR's laws, wags dubbed it "the switch in time that saved nine." The era marked by Chief Justice Earl Warren, when liberal federal judges sometimes raced ahead of the public and political leaders, was something of a fluke that lasted only about two decades.
For the past quarter century, the courts have been conservative, but so has the government. Few new sweeping regulatory schemes became law. Now the Roberts Court has tilted markedly more conservative than the Rehnquist Court—at the same time the voters elected a more liberal set of politicians than they had in half a century. Republican presidents appointed seven of nine Supreme Court justices, as well as two thirds of the federal appeals judges who make most key rulings. Of course, party labels aren't everything. Dwight Eisenhower called his appointment of Warren "the biggest damned-fool mistake I ever made." Still, a study by professor Cass Sunstein, now a top Obama legal aide, shows that the political philosophy of lower-court judges often predicts how they will rule. Constitutional conflict may loom.
How will this play out?...
