The New York Times has written one of the most intemperate editorials it’s been my pleasure to see in a long time, attacking the decisions emanating from the more conservative Supreme Court. The opening will give you an idea:
In the 1960s, Chief Justice Earl Warren presided over a Supreme Court that interpreted the Constitution in ways that protected the powerless — racial and religious minorities, consumers, students and criminal defendants. At the end of its first full term, Chief Justice John Roberts’s court is emerging as the Warren court’s mirror image. Time and again the court has ruled, almost always 5-4, in favor of corporations and powerful interests while slamming the courthouse door on individuals and ideals that truly need the court’s shelter.
President Bush created this radical new court with two appointments in quick succession: Mr. Roberts to replace Chief Justice William Rehnquist and Samuel Alito to replace the far less conservative Sandra Day O’Connor.
The editorial then goes on a mad dash through some of the more famous rulings of the last judicial term, describing them in terms, not of the actual ruling, but of the ruling’s effect. For example:
The Roberts court’s resulting sharp shift to the right began to be strongly felt in this term. It was on display, most prominently, in the school desegregation ruling last week. The Warren court, and even the Rehnquist court of two years ago, would have upheld the integration plans that Seattle and Louisville, Ky., voluntarily adopted. But the Roberts court, on a 5-4 vote, struck them down, choosing to see the 14th Amendment’s equal-protection clause — which was adopted for the express purpose of integrating blacks more fully into society — as a tool for protecting white students from integration.
On campaign finance, the court handed a major victory to corporations and wealthy individuals — again by a 5-4 vote — striking down portions of the law that reined in the use of phony issue ads. The ruling will make it easier for corporations and lobbyists to buy the policies they want from Congress.
Corporations also won repeatedly over consumers and small stockholders. The court overturned a jury’s award of $79.5 million in punitive damages against Philip Morris. The Oregon Supreme Court had upheld the award, calling Philip Morris’s 40 years of denying the connection between smoking and cancer “extraordinarily reprehensible.”
In a ruling that will enrich companies at the expense of consumers, the court overturned — again by a 5-4 vote — a 96-year-old rule that manufacturers cannot impose minimum prices on retailers.
The Times‘ horror is interesting, because it so clearly demonstrates what its editors think the Supreme Court should do: put it’s imprimatur on liberal policies. There’s really no other way to read the editorial, because there’s nothing in it that challenges the Court’s opinions on Constitutional or other legal grounds. They’re savaged only on possible practical effect.
This editorial silence may be because, as I pointed out a couple of weeks ago, the opinions are in fact entirely consistent with existing law and existing Constitutional interpretations. What’s wrong with them, then, at least if you’re on the Times editorial board, is not that they were decided wrongly on legal grounds — which they weren’t — but that they were decided wrongly at a social and political level.
The Times’ position stands up to scrutiny only if you’re a judicial activist who believes that it is the Supreme Court’s job to legislate away social ills when a stubborn or foolish Legislature refuses to do so. Those of us who are not judicial activists believe it is the Court’s responsibility to interpret the Constitution, and the legislation flowing from that Constitution, and to let the chips fall with they may. If Americans dislike the chip falls, it is up to them nudge the existing federal representatives in Congress, or to elect an entirely new batch of federal legislators, so that Congress either changes the laws or amends the Constitution, whichever is necessary. That is the essence of the separation of powers doctrine.