What’s the Supreme Court Supposed to Do?
Sometime in 2012 the United States Supreme Court will issue its most important opinion in the twenty-first century when it decides the Constitutionality of the Patient Protection and Affordable Care Act (PPACA, or “Obamacare” to its enemies). The question before the Court will be whether the Tenth Amendment to the Constitution (which provides, essentially, that the federal government is one of limited and enumerated powers) still has any force. Most of the American legal academy has decided this question in the negative as, for example, have Harvard Law School Professors Laurence Tribe and Charles Fried (running the spectrum from left to center right, which is as far as it goes at Harvard). Both have suggested that it is unimaginable that the Court could decide that Congress does not have the authority to implement a national system of health care.
This does not appear to be the view of the American people, however, who handed Barack Obama’s Democrats a resounding defeat at the polls in 2010, a defeat whom many attributed to chagrin over the Obama administration’s overreaching in passing the PPACA. The PPACA appears to have had the most to do with the rise of the “Tea Party,” and its reinvigoration of conservatives in American politics. In this brilliant monograph, Lucas A. Powe, Jr., one of our most distinguished Constitutional historians, mounts an argument that politics has always mattered to Supreme Court Justices and that the rule of law is somewhat fictional. I suspect the implication may well be that in 2012 the Supreme Court will follow the 2010 election returns and declare that the PPACA violates the Constitution.
Powe’s book was written before the election of 2010, and, indeed, in the book he argues that the core principle of the Tenth Amendment, which often goes by the name “Federalism,” is a virtual dead letter with the Court (p. 318), but if his reading of Supreme Court cases teaches anything, it is that doctrine is much less important than the evolving nature of American public opinion. The book is, perhaps, slightly misnamed, as, for Powe, what determines how the Court comes out is not exactly “elite” opinion, but more the American “elite’s” perception of what it is that the American public thinks, or at least is ready to be led to think. Thus, for example, while the Supreme Court was not prepared to implement homosexual rights in Bowers v. Hardwick (1986), by Lawrence v. Texas (2003), it was ready to make that move, because virtually all American jurisdictions had ceased to enforce criminal prohibitions against consensual homosexual acts (pp. 332–333).
Powe has written the best currently available one-volume treatment of the history of the Supreme Court, and his mastery of over two centuries of cases, personalities, politics, and culture is awesome. There is very little, if anything, in his legal analysis that he gets flat wrong, and there is much to admire. I don’t share Powe’s disdain for “country club Republicans,” nor to I subscribe to his repetitive derogatory comments about the South generally, but he has superbly dissected the current swing justice on the Court, Anthony Kennedy, as someone “who worries how his actions will be perceived, loves the adulation of the press, and frequently spends time with his European counterparts in Salzburg.” (p. 333). (When Justice Kennedy visited Northwestern a few years back, I concluded that he might be better fit for the House of Lords than the Supreme Court, and I think Powe is on to something.)
Powe appears to be a good liberal and thus has a fair amount of praise to lavish on Earl Warren and William Brennan, whom he regards as legal giants (p. 245), along with—intriguingly—the second John Marshall Harlan, a centrist conservative. Good liberal though he may be, however, he is also an astute and acerbic critic even of the Warren Court, and he correctly points out that the pinnacle of Warren Court jurisprudence, Brown v. Board of Education (the 1954 decision that declared racially segregated schools unconstitutional) was “both short and short on reasoning.” (p. 243). And while Powe cannot quite bring himself fully to approve of Justice Antonin Scalia, the brilliant leader of the Court’s conservatives since his appointment in 1986, he is quite fair in laying out Scalia’s jurisprudential philosophy, and has the grace to concede (as others, with less grace, have not) that Scalia is “personable” and “smart” (p. 303). Indeed, Powe even states that Senate Democrats who voted on Scalia’s confirmation, in their contemporary attacks on William Rehnquist, demonstrated that they were “brain-dead.” (p. 303)
So while Powe’s sympathies may lie with the left, he is an equal opportunity excoriator, and his book is peppered with gems of inside gossip. He quotes, for example, Felix Frankfurter’s barb that Chief Justice Vinson’s 1953 death of heart attack “was the first indication of the existence of God that he had ever seen,” (p. 242) and he dismisses Harry Blackmun as “prickly” and “always insecure.” (p. 302). In passing, Powe quite correctly characterizes Blackmun’s signal achievement, his 1973 opinion for the Court in Roe v. Wade (the decision which declared that the Constitution protected abortion), as one which “competes successfully as the worst of the twentieth century.” (p. 278).
There are a few things in the book that perhaps should give some pause, as, for example, when Powe indicates that in the Watergate imbroglio, when the Supreme Court required Richard Nixon to turn over the White House tapes, “What the Court did was revert to what it traditionally does: piling on to facilitate what is already happening,” (p. 282), or when he asks, with Olympian confidence, whether anyone could “believe that had all the relevant facts been reversed so that the case was Gore v. Bush, the Republican majority on the Court would have used the same rationale to halt the manual recount that might give George W. Bush enough votes to overtake Al Gore’s lead?” “Of course not,” he says. (p. 338). That is not so clear, and, indeed, Powe himself succinctly lays out the facts that supported the opinion of Scalia, Clarence Thomas, and Rehnquist in Bush v. Gore that the Florida Supreme Court was “changing the rules on the fly to steal the election for Gore.” (p. 339).
The mark of a truly superb scholar is displayed when the analysis is thorough and fair enough to permit conclusions opposite to those the author himself draws. Thus Powe can make light of the fact that at his hearings for his confirmation as Chief Justice, John Roberts “even absurdly analogized a justice to an umpire, as if justices merely apply known rules to recurring situations,” (p. 342). But what gives Powe’s book cogency and power is his ability to call the Justices to account when they have strayed from their sworn duty to uphold the Constitution and the rule of law. As his last words, Powe declares that “however confident and however pretentious, the Court will continue to function as it has for most of its existence—to harmonize the Constitution with the demands of majoritarian politics” (p. 350). When the Court rules on Obamacare, we’ll find out if Powe got it right.
Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law.
Posted: July 17, 2011
A Lived, not ‘Living’ Constitution
Steven H. Aden and Josiah A. Aden