Last week, E.J. Dionne wrote, "Right before our eyes, American conservatism is becoming something very different from what it once was. Yet this transformation is happening by stealth because moderates are too afraid to acknowledge what all their senses tell them." With all due respect to Dionne, who really has been good on this issue for some time, this is not a recent development. They are who we (the DFH bloggers) thought they were—a radical, extreme party intent on returning the country to a pre-New Deal state.
This past week, President Obama sounded like "one of us," warning that a Court overturn of the Affordable Care Act would hearken a return to the the Lochner Era of economic substantive due process, when the Court struck down federal and state laws that prohibited child labor. The president also delivered a speech in which he said of the proposed Republican budget:
This Congressional Republican budget is something different altogether. It is a Trojan Horse. Disguised as deficit reduction plan, it is really an attempt to impose a radical vision on our country. It is thinly-veiled Social Darwinism [...]I think we can safely say that the era of the Post Partisan Unity Schtick is over. And well buried. But it was not always so. In a 2005 Daily Kos diary, Tone, Truth and the Democratic Party, then-Sen. Obama wrote:
I read with interest your recent discussion regarding my comments on the floor during the debate on John Roberts' nomination. [...] I thought this might be a good opportunity to offer some thoughts about not only judicial confirmations, but how to bring about meaningful change in this country. [...]I was among those who Sen. Obama was addressing, issuing broadsides against Sens. Baucus, Leahy and Feingold (yes, Feingold) for announcing their intention to vote to confirm John Roberts as chief justice of the United States (Sen. Obama voted against confirmation). Seven years later, I believe we have been demonstrated to have had the better of the argument.
According to the storyline that drives many advocacy groups and Democratic activists - a storyline often reflected in comments on this blog - we are up against a sharply partisan, radically conservative, take-no-prisoners Republican party. They have beaten us twice by energizing their base with red meat rhetoric and single-minded devotion and discipline to their agenda. In order to beat them, it is necessary for Democrats to get some backbone, give as good as they get, brook no compromise, drive out Democrats who are interested in "appeasing" the right wing, and enforce a more clearly progressive agenda. The country, finally knowing what we stand for and seeing a sharp contrast, will rally to our side and thereby usher in a new progressive era.
I think this perspective misreads the American people. From traveling throughout Illinois and more recently around the country, I can tell you that Americans are suspicious of labels and suspicious of jargon. They don't think George Bush is mean-spirited or prejudiced, but have become aware that his administration is irresponsible and often incompetent. They don't think that corporations are inherently evil (a lot of them work in corporations), but they recognize that big business, unchecked, can fix the game to the detriment of working people and small entrepreneurs. They don't think America is an imperialist brute, but are angry that the case to invade Iraq was exaggerated, are worried that we have unnecessarily alienated existing and potential allies around the world, and are ashamed by events like those at Abu Ghraib which violate our ideals as a country.
It's this non-ideological lens through which much of the country viewed Judge Roberts' confirmation hearings. A majority of folks, including a number of Democrats and Independents, don't think that John Roberts is an ideologue bent on overturning every vestige of civil rights and civil liberties protections in our possession. Instead, they have good reason to believe he is a conservative judge who is (like it or not) within the mainstream of American jurisprudence, a judge appointed by a conservative president who could have done much worse (and probably, I fear, may do worse with the next nominee). While they hope Roberts doesn't swing the court too sharply to the right, a majority of Americans think that the President should probably get the benefit of the doubt on a clearly qualified nominee. [Emphasis supplied.]
John Roberts is who we thought he was. The Republican Party is what we thought it was. They are who we thought they were. As for tactics, it seems the president now sees it our way—a Fighting Democratic Party is a more progressive and politically successful Democratic Party.
One of the most important fronts in the fight is the Supreme Court. Let's discuss the extreme and radical Roberts Court on the other side.
(Continued on the other side)
Consider just two decisions that the Roberts Court has handed down (especially since Justice Alito replaced Justice O'Connor):
The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. [...] The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.Parents Involved (where the Roberts Court, in a 5-4 decision, struck down local desegregation plans in Seattle and Louisville) again, from Justice Stevens' dissent:
There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955) . The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” Ante, at 40. This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”1 The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools.2 In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions. Compare ante, at 39 (“history will be heard”), with Brewer v. Quarterman, 550 U. S. _, _ (2007) (slip op., at 11) (Roberts, C. J., dissenting) (“It is a familiar adage that history is written by the victors”).My take at the time. Oh, by the way, the Roberts Court has granted cert to a case which directly challenges Grutter, which upheld affirmative action programs designed to promote diversity. Who thinks it will survive? In case you were wondering, Justice Kennedy dissented in Grutter.
The Chief Justice rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude.3 The only justification for refusing to acknowledge the obvious importance of that difference is the citation of a few recent opinions—none of which even approached unanimity—grandly proclaiming that all racial classifications must be analyzed under “strict scrutiny.” See, e.g., Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 227 (1995) . Even today, two of our wisest federal judges have rejected such a wooden reading of the Equal Protection Clause in the context of school integration. See 426 F. 3d 1162, 1193–1196 (CA9 2005) (Kozinski, J., concurring); Comfort v. Lynn School Comm., 418 F. 3d 1, 27–29 (CA1 2005) (Boudin, C. J., concurring). The Court’s misuse of the three-tiered approach to Equal Protection analysis merely reconfirms my own view that there is only one such Clause in the Constitution. See Craig v. Boren, 429 U. S. 190, 211 (1976) (concurring opinion).
If we look at cases decided during the interim between Brown and Adarand, we can see how a rigid adherence to tiers of scrutiny obscures Brown’s clear message. Perhaps the best example is provided by our approval of the decision of the Supreme Judicial Court of Massachusetts in 1967 upholding a state statute mandating racial integration in that State’s school system. See School Comm. of Boston v. Board of Education, 352 Mass. 693,227 N. E. 2d 729.5 Rejecting arguments comparable to those that the plurality accepts today,6 that court noted: “It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoals in the Fourteenth Amendment .” Id., at 698, 227 N. E. 2d, at 733 (footnote omitted).
Now what of the Affordable Care Act case? Let's remember who we are dealing with here—four extreme radical hacks (Thomas, Scalia, Alito and Roberts) and a fifth Justice (Kennedy) who thinks it is his job to legislate from the bench.
In a rather remarkable (to me at least) turn of events, some kossacks are heartened by the possibility that these five justices will create "limiting principles":
My concern is that we (both Kosters and liberal legal thinkers) are fooling ourselves on this point. The only way out of the problem -- both with the Justices and with the American people -- is to articulate a clear limiting principle. Verrilli didn't; neither do you, because preventative health also impacts the health care market. But you gave it a good try, which is valuable. [...] My life would be much easier and happier if I agreed with Armando that the other side is simply stupid, unreasonable, and vile. But I think that we're making a huge mistake here, and that we really need to think of ways to limit the damage.There is something incongruous to me about a progressive expressing concern about the need for "limiting principles" from THIS Court with regard to the exercise of the Commerce power to regulate commerce. Those demanding "limiting principles" here argue that those of us who are of the view that the individual mandate is clearly constitutional are ignoring the "slippery slope." To the contrary, we are concerned about the "slippery slope," a declaration that ACA exceeds the Commerce power would lead us down. Especially considering the Roberts Court.
Here is an illustration: In the recently decided Florence v. County of Burlington (PDF), the Roberts Court (with Justice Kennedy writing the opinion) saw no need for limiting principles:
Correctional officials have a legitimate interest, indeed a responsibility, to ensure that jails are not made less secure by reason of what new detainees may carry in on their bodies. Facility personnel, other inmates, and the new detainee himself or herself may be in danger if these threats are introduced into the jail population. This case presents the question of what rules, or limitations, the Constitution imposes on searches of arrested persons who are to be held in jail while their cases are being processed. [...] The case turns in part on the extent to which this Court has sufficient expertise and information in the record to mandate, under the Constitution, the specific restrictions and limitations sought by those who challenge the visual search procedures at issue. In addressing this type of constitutional claim courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security. That necessary showing has not been made in this case. [Emphasis supplied.]Coming from Justice Kennedy, who demanded a "substantial justification" from the government for the individual mandate, this is rich:
Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed [...] If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is a, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?Think about that. Justice Kennedy demands "substantial justification" from the government for the individual mandate but a "necessary showing" from persons who are strip searched. Are we really concerned about "limiting principles" for economic regulation from THIS COURT? This "concern" strikes me as otherwordly. They, the Roberts Court, are who we thought they were.
Beyond that, the limiting principles of the Commerce power are clear. In U.S. v. Carolene Products, the Court stated:
The power to regulate commerce is the power "to prescribe the rule by which commerce is to be governed," Gibbons v. Ogden, 9 Wheat. 1, 196 [...] The power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution." Gibbons v. Ogden, supra, 196. [...] it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. [Emphasis supplied.]What's the limit? It is this:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California,283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.Until the Roberts Court, these limiting principles were well understood. As for the Necessary and Proper Clause, as recently as U.S. v. Comstock, the Court said:
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378; Herndon v. Lowry, 301 U.S. 242, and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U.S. 177, 184, n 2, and cases cited. [Emphasis supplied.]
The question presented is whether the Necessary and Proper Clause, Art. I, §8, cl. 18, grants Congress authority sufficient to enact the statute before us. In resolving that question, we assume, but we do not decide, that other provisions of the Constitution—such as the Due Process Clause—do not prohibit civil commitment in these circumstances. Cf. Hendricks , 521 U. S. 346 ; Addington v. Texas , 441 U. S. 418 (1979) [Emphasis supplied.]The assumption being that if the exercise of the Commerce power (in Comstock it involved the ultimate in denial of a liberty right—it involved a federal statute to civilly commit persons—indefinitely) does not violate other prohibitions of the Constitution, then the test of constitutionality is:
We have since made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. Sabri v. United States, 541 U. S. 600, 605 (2004) (using term “means-ends rationality” to describe the necessary relationship); ibid. (upholding Congress’ “authority under the Necessary and Proper Clause” to enact a criminal statute in furtherance of the federal power granted by the Spending Clause); see Gonzales v. Raich, 545 U.S. 1, 22 (2005) (holding that because “Congress had a rational basis” for concluding that a statute implements Commerce Clause power, the statute falls within the scope of congressional “authority to ‘make all Laws which shall be necessary and proper’ to ‘regulate Commerce … among the several States’ ” (ellipsis in original)); see also United States v. Lopez, 514 U. S. 549, 557 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276 (1981).That's the law (and has been the law for nearly 80 years at least). And unless it is changed by the Roberts Court, the mandate and its enforcement mechanism are clearly constitutional.
Should a progressive REALLY be concerned about "limiting principles" regarding the Commerce power as opposed to the Roberts Court employing "limiting principles" to eviscerate our modern national state (Medicare, Social Security, EPA, etc.)? Really?
Here is what progressives should really be concerned about—the reversal of FDR's transformation of our national government by the Roberts Court. In 2001, Jack Balkin described it well:
I think the notion that conservatives want to restore a "Constitution in Exile" is helpful on the one hand but also a bit misleading on the other. What Republican constitutionalists seek, I would argue, is not so much a pre-New Deal Constitution but a pro-business Constitution. That means that the New Deal precedents will not be completely rolled back, but rather will be narrowed in order to facilitate a conservative domestic agenda. Indeed, some New Deal innovations-- particularly those regarding the increased scope of federal regulatory power, actually assist a pro-business agenda. Tort reform is a good example. The tort reform packages presently before Congress would have been unconstitutional according to the understandings of the pre-New Deal Constitution because they would have imposed too great an interference on state tort law, reaching, for example, both manufacturing and commerce.They are who we thought they were. The process Balkin predicted is well under way. And progressives should be concerned about "limiting principles" for the Commerce power? Not in this reality. Sorry.
They are who we thought they were. And we must fight them. First battle is the presidential election - or, Why Obama: The Supreme Court.