Disdain all around
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.”
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.
Show commenting policy
TribLive commenting policy
You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.
We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.
While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.
We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers.
We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.
We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.
We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.
We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.
- Pirates sign Corey Hart to 1-year deal
- Giant Eagle Inc. appears to have settled ‘fuelperks!’ lawsuit
- Police gather in Ligonier for Perryopolis officer’s funeral
- Rossi: Brawl for ADs between Pitt and WVU
- Review: No improper contact between Pa. Supreme Court justices, lawyers
- Analysis: Misunderstood Chryst served Pitt well
- Steelers must be creative in providing snaps for linebackers
- Penguins’ Maatta tests positive for mumps; Bortuzzo, Greiss negative
- Veteran tight end Miller’s blocking skill crucial to success to Steelers running game
- Uniontown man charged with raping 2 girls
- Time is of essence for Pitt in finding football coach, athletic director