TribLIVE

| Opinion/The Review

 
Larger text Larger text Smaller text Smaller text | Order Photo Reprints

Disdain all around

Email Newsletters

Click here to sign up for one of our email newsletters.

Letters home ...

Traveling abroad for personal, educational or professional reasons?

Why not share your impressions — and those of residents of foreign countries about the United States — with Trib readers in 150 words?

The world's a big place. Bring it home with Letters Home.

Contact Colin McNickle (412-320-7836 or cmcnickle@tribweb.com).

Daily Photo Galleries

'American Coyotes' Series

Traveling by Jeep, boat and foot, Tribune-Review investigative reporter Carl Prine and photojournalist Justin Merriman covered nearly 2,000 miles over two months along the border with Mexico to report on coyotes — the human traffickers who bring illegal immigrants into the United States. Most are Americans working for money and/or drugs. This series reports how their operations have a major impact on life for residents and the environment along the border — and beyond.

Saturday, Dec. 29, 2012, 8:04 p.m.
 

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.

It is the court's health care decision that Karlan 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?

George F. Will is a columnist for The Washington Post and Newsweek.

Subscribe today! Click here for our subscription offers.

 

 


Show commenting policy

Most-Read Stories

  1. Ejections, heated moments mark Pirates’ win over Reds
  2. Inside the Steelers: Roethlisberger strong in goal-line drills
  3. Slot CB Boykin gives Steelers options in secondary
  4. Zimbabwe alleges Murrysville doctor illegally killed lion
  5. Steelers notebook: WR Bryant sidelined after minor procedure on right elbow
  6. Pirates notebook: Burnett says ‘surgery is not an option’
  7. Making environmentalism divisive
  8. Latest debris found on French island not from missing Malaysia Airlines flight
  9. Former Schenley star Kennedy leads Overseas Elite to $1 million prize
  10. News Alert
  11. Addision man killed in Route 40 collision