Law and Politics: Where is the Supreme Court?
Without question, this term of the Supreme Court has been a roller-coaster. This term, the Supreme Court overturned the Federal sentencing guidelines, empowered 401(k) holders to sue their employers for mismanagement of their retirement funds, ruled that lethal injection was not cruel and unusual punishment, required voters to present ID before voting, struck down a child pornography statute stating it’s scope was too broad, gave detainees at Guantanamo access to federal courts for Habeas Corpus petitions, empowered older workers to sue their employers arguing age discrimination in layoffs, ruled that the death penalty is excessive punishment in response to child rape, and last but not least - in DC v. Heller, decided that the 2nd Amendment is indeed an individual right.
Wow! What a term!
When I learned Constitutional law, there was one case that stood out in my mind, and I have been reviewing it again now that the 2007-2008 Supreme Court term has ended. The case was that of Ashwander v. Tennessee Valley Authority, (297 U.S. 288). In particular, that case was indelible to me because it expressed a view that I think has long been abandoned - the Court is not a policy making body.
The case itself is not particularly exciting. The case in question was a claim by stockholders of a small utility company that the TVA was unconstitutional. The Court ruled that the government had a right to involve itself with such construction when it affects national security, enhances interstate commerce, and produces other general public benefits, and that Article IV Section 3 of the Constitution gave it the right to sell property. I know, by now, you’re completely asleep.
In that decision, Justice Brandeis expressed concern that such a simple disagreement should have reached the Court. In a footnote of his opinion, he promulgated a set of rules that he believed should guide the Court, as a matter of policy, of the types of cases they should consent to hear, within their role and authority under the US Constitution. The rules he offered were:
Justice Brandies argued these rules are important because, unlike the President or the Congress, the rulings of the Court are final, being overturned only by reversals of the Court itself. The rules are designed to keep the Court from essentially becoming a rule making body that arbitrates political questions.
This term’s most important decisions have been only about political questions not questions of law.
For example, people hung on every word in anticipation of the Heller decision. Would the Court strike down the Ban? Does the Second Amendment apply? Is the Second Amendment an individual right? All of these quesitons are inherently political questions. Now that the gun ban has been “lifted,” the media and people are reacting as if the Court has bestowed some right on the people of DC. It didn’t. The people of DC always had that right.
Another case I’ve blogged about - the Kennedy v. LA decision. Think about this for a minute, the Supreme Court decided that the death penalty is excessive punishment for child rape. The people of Louisiana had elected the representatives of the Louisiana legislature, the Govenor enacted the law. Eight other states enacted similar laws. In a 5-4 decision under logic that is entirely political, overturned that entire political process in those states.
My final thought is this - for conservatives Supreme Court appointments are all about Roe v. Wade. As a political, during the vetting process, I got asked whether or not I thought Roe was good law. I said I did not think it was a good decision - not because of anything to do with the issue of pro-choice v. abortion - but rather in that the decision itself seems to be based on tenuous political assumptions about choice and individual autonomy. Similarly, I think affirmative action is unconstitutional - not because I don’t disagree with the goals of providing equal opportunity and eliminating racial bias. I do disagree, however, with how the Court has applied its logic to the quesiton of racial discrimination - those are political, not legal, questions.
Supreme Court nominations are all about politics. Are you pro-choice? Where are you on the powers of the Presidency and the concept of the unitary executive? Are you pro defense? In short - all these questions drive towards one goal are you going to vote on the court consistent with our political philosophy. Now, let me say that I believe that Chief Justice Roberts and Justice Alito are exceptionally good justices. Both of them are exceptionally good picks. But I believe that these Justices are good jurists in spite of the process of their selection to the Supreme Court and not because of it.
If Sen. Obama wins the White House, he will appoint at least one, and probably two, justices. The Republican “talk radio” is harping on this - suggesting that when this person is appointed, hell on earth will be brought about. People marrying donkeys. Rampant sex in the streets. Mass hysteria. As a result - GOP officials and pundits argue - vote McCain, he’ll appoint judges that are sane.
Justice Brandies had a good sense - the Court is not to be made primarily a political fora. Unfortunate, I feel that has been completely lost along the way.
And come the first Monday in October, it will start all over again - what rights will be preserved, what rights will be taken away, who will win… and who will lose. If only people showed such interest in the election of their representative to Congress, activism by the Court would be largely unecessary.
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You cannot wash politics out of American’s underwear. Americans exude it from birth. What can be done, as you suggest, is to replace so-called activist judges from every court in America, the most significant one being U.S. Supreme Court justices.
In your reference to the Ashwander v TVA case, your focus is on a footnote by a liberal judge that does establish some sanity in qualifying cases to be heard by the court. But I think you have missed the larger point, one that I consider a thorn in the side of the Constitution.
The court never ruled on the constitutionality of the TVA Act. Many of the plethoras of New Deal laws were eventually found unconstitutional but not the TVA Act among several others.
In my view, the TVA should be ruled unconstitutional for several reasons (I’m sure legal scholars could find many more) first, because it is anathema to our whole free enterprise, entrepreneurial system. The federal government should not be in competition with other free-market suppliers of electricity. Isn’t that enough of a reason by itself?
Another reason, is that the TVA in its unique position has become a freewheeling out of control federal agency with no guidance from any oversight body in Washington (no appropriations means no interest by the Congress).
Recently, after the new and streamlined organization of the TVA, it has committed an egregious blunder. It failed to secure the computer systems of the TVA from a possible cyber-attack.
I will not regurgitate here the many, many cases of gross mismanagement, suffice to say the agency that calls itself “self financed†does not say much about its “backdoor†financing. That debt is now at about $25 billion.
I have called for the resignations of the CEO and board of directors for their ineptitude that placed the whole nation at risk by leaving TVA’s computer systems vulnerable to cyber-hackers. (See GAO May 21, 2008 report).
For extensive comments about the TVA, see http://norsworthyopinion.com and http://norsworthyattheshoals.blogspot.com
Ernest Norsworthy
Visalia, California
emnorsworthy@earthlink.net
“The court never ruled on the constitutionality of the TVA Act. Many of the plethoras of New Deal laws were eventually found unconstitutional but not the TVA Act among several others.”
Some argue that when the SCOTUS decides not to review or speak to a particular aspect of the case, that aspect is either unimportant, or the decision of the lower court was sufficient in the minds of the Justices.
As for the TVA, I’d argue the discussion by the Court in Ashwander did conclude that the TVA was Constitutional under the commerce clause and was also legitimate under the CNC role of the executive Branch…. but that’s just me.
I suggest a re-reading of the well-reasoned dissent of Judge McReynolds in the 5-4 decision. (Were there anything but split decisions regarding the TVA?)
Below is the main basis for the affirmed decision. (From Justia)
“The decision on the constitutional question is strictly limited to the right of the Government to dispose of the energy itself — which is simply the mechanical energy, incidental to falling water at this dam, converted into electric energy, susceptible of transmission — and the right to acquire these transmission lines as a facility for disposing of that energy. The Government rightly conceded at the bar that it was without constitutional authority to acquire or dispose of electric energy except as it comes into being in the operation of works constructed in the exercise of some power delegated to the United States. The question whether it might constitutionally use the energy generated at Wilson Dam in carrying on manufacturing or commercial enterprises not related to the purposes for which the Government was established, is not involved in this case; nor is the question whether, for disposing of the energy, the Government could acquire or operate local or urban Page 297 U. S. 291 distribution systems. The Court expresses no opinion as to such questions, nor as to the status of any other dam or power development in the Tennessee Valley, whether connected with or apart from the Wilson Dam, nor as to the validity of the Tennessee Valley Authority Act or of the claims made in the pronouncements and program of that Authority, apart from the questions discussed in relation to the particular provisions of the contract above mentioned affecting the Power Company. P. 297 U. S. 339.â€
Unless I do not understand plain English, the above clearly states that the court did not rule on the constitutionality of the TVA Act, per se.
And it is patently obvious that the TVA since then has gone its merry way into very dubious areas in no way contemplated by the Act. From its puny 50-mile radius from Wilson Dam at Muscle Shoals, Alabama, TVA has grown to an 80,000 square mile behemoth with its eminent domain stick.
At first, Wendell Willkie supported FDR but after he understood TVA’s socialist direction to “cover Americaâ€, he opposed both. (Hey, have you read Amity Shlaes’ book “The Forgotten Manâ€? It covers much of the political machinations of FDR back then, “court packing†for example).
Ernest Norsworthy
I’d disagree it’s “patently obvious”…
Court hasn’t reviewed it since that decision… thus, they must believe there is no issue of Constitutional law that is justiciable. I’d also point out as a matter of history (and something you also pointed out) many of the New Deal programs were reviewed, and were struck down as being unconstitutional.
My own view is that the regulation of water, power, and electric is an inherently governmental function since the purpose of government is to provide for the general welfare of its citizens. Since a model of energy generation on the micro-scale never developed, mass produced power is the lifeblood of America, and regulation of that activity is inherently a governmental function. I suspect the Court must agree with me at some level since they’ve declined review of the TVA for now close to 40 years.
… just a thought. But I appreciate your logic and thoughts about it…
My thought is this: I do not think that the SCOTUS believed the TVA would expand much beyond the original scope as it reviewed. To think otherwise would put the Court on clearly a track toward socialism. It was the Congress that thwarted further attempts at making “little TVA’s” as advocated by Sen. George Norris. Congress has made further limiting adjustments to TVA including requiring that whatever it was going to do had to be within its own budget from electricity sales with a $30 billion borrowing capacity.
That’s where the “backdoor” financing comes in - lower rates (but increasing) with no Congressional appropriations or much oversight. But TVA has borrowed so much money that the interest on their $25 billion debt compels them to do what they never thought they would have to do - tell customers to stop buying so much electricity.
There is no argument that energy should be regulated - but not nationalized. TVA now has many other federal agencies to deal with, e.g., EPA, DOE and within that department, the NRC - then there’s the SEC they now have to contend with.
Look at it this way, with this question - do you know of any government organization that is competently run, that directly competes with our free-market system? I know the TVA does not nearly reach that mark; I”ll not bother you with the many, many TVA management mistakes, or how TVA management put the whole country at risk by their dilatory actions in not securing TVA’s computer systems from possible cyber-attacks.
Now does the fact that the SCOTUS has not ruled on a matter for a long time, in one recent case, a very long time, make it less worthy of a rehearing? (D.C.gun case).
At this point, I do not believe your arguments are strong enough to change my view of the constitutionality of the TVA nor probably are mine in your view.
Ernest Norsworthy
Ernest:
Well - in respect to the one question - yes, the Fed is clearly in competition with the free market. There is no reason why short-term interest rates couldn’t free float entirely according to the market. Some argue that would be better - I’m not one of them - but yes, I do think that central banks are constantly in a competitive situation against free-market credit markets.
Second - I will be honest, I’m not familiar enough with the TVA or its operation to really evaluate your arguments. I’m just making the observation that the TVA has functioned for quite some time now, and the Court has not seen fit to enter into any further discussions about it. If a compelling argument can be made that the TVA exceeds Constitutional authority, then I believe this Court would issue an opinion on it. That’s all I’m really saying here.
But I appreciate your comments and following the thread. If you would like - I’m willing to entertain the notion of a guest blog post on the issue and we can open it up to the RC readership to review and discuss more fully.
B
That really would be terrific.
Ernest
Sad when Supreme Court Justices vote party lines rather that by laws of US.