The Supreme Court/The Worst Is Over
Rabkin, Jeremy
Jeremy Rabkin/The Supreme Court SIABHUHHHUHHHUHUMUNHUHHUHUHHHUNUMI lllllllll llllllllllllll HUHUUMUU llllllllllllllllll Iffimumnommumummummumhuumum ll ll ll ll llllll ll llll ll ll ll ll llllllll...
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...This sort of extreme moralism, which became quite fashionable in the late 1970s, will be harder and harder to sustain as property rights revive and other rights come to be seen in this larger context...
...The point is simply that (with some notable exceptions...
...But it is usually forgotten that these Court decisions were not widely denounced at the time for departing from the true or original "intent" of the Constitution, because the results—though widely condemned by subsequent generations—were not, in themselves, all that controversial before the First World War...
...In fact, there is much to be said for adhering to settled rules in fairness to the expectations built around those rules...
...And in every one of these areas—as in many others—Court decisions of recent years have seen significant retreats or at least significant defections by individual justices from the "bold" stands of the early 1970s...
...And if they are listening to their fancy advisers at the Harvard Kennedy School and elsewhere, many liberal politicians may indeed welcome the result of decisions that cut back on rent control schemes, zoning manipulations, special protections for construction unions, and so on...
...Many legal commentators today still do condemn the questionable "substantive due process" rulings of the early twentieth century, which attempted to limit the reach of minimum wage laws, maximum hours laws, and other sorts of early labor legislation...
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...Twenty years ago, those who urged courts to attend to "the environment" simply wanted criminal courts to recognize that crime was "caused" by poverty and drugs and other surrounding influences—and no one, in fact, disputed that this "environment" ought to be eliminated...
...At the least, the terms of debate in twenty years are likely to be rather different from—and rather less shrill and polarized than—what they are now, notwithstanding what has happened to Judge Robert Bork...
...Over the past twenty years, many politicians have welcomed "civil libertarian" Court decisions which delivered results that they sought —while relieving them from having to take responsibility for these results...
...It doesn't seem at all utopian, however, to expect that twenty years hence we will not be seeking solutions from aging lawyers in black robes...
...Twenty 1 years ago, busing was simply a means of transportation...
...The prediction that we will hear a good deal more about "property rights" is not a qualification or exception to the foregoing but an extrapolation from the same assumptions...
...But to the extent that liberal opinion tries to be protective of state economic controls for special purposes, it will have a stake in moderating extremism about "rights" and this will not be an argument that can be pursued in isolation...
...Actually this was charged against the Supreme Court as early as the 1790s—and charged with such vehemence (and plausibility) in one case that an eleventh amendment was quickly added to the Constitution to overrule the Court's misreading of the framers' intent...
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...In the past decade, we have seen this constellation of ideas shrink from the foundation of "respectable opinion" to the preserve of hysterical advocacy groups...
...In the mid-1960s, the Warren Court was already assailed by much more bitter criticism than we now remember...
...But the dominant outlook among economists is now much more respectful of unregulated markets and much legal commentary, in turn, emphasizes the importance of legalprotections for market activity...
...In more recent decades, judicial activism on behalf of "civil liberties" or "equal protection" has still further eroded the "sovereignty" of the states...
...And, ironically, the trends in constitutional law over the past fifty years will make such interventions all the easier...
...And rather than departures from "original intent" provoking controversy, it is more accurate to say that controversial rulings provoke indignant appeals to "original intent...
...But the Constitution wasn't meant to be a utopian document, after all...
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...They are most comfortable—and find it least mentally taxing—when they can ride along with "respectable opinion," and in the late 1960s and seventies "respectable opinion"—in the media, in the academy, in Washington—was inclined to think that "progress" meant more equality and more distance from traditional morality (which is so prone to moral distinctions threatening to equality...
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...My guess is that twenty years hence, journals like The American Spectator will have returned to viewing the Supreme Court as a rather unpromising target...
...Though already obvious, this really is a relatively new discovery...
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...More or less plausible arguments will be launched to the effect that overall economic "efficiency" is not the only concern of public policy, that various other concerns or sensibilities or "values" must be considered...
...There was already a vigorous debate about abortion twenty years ago, but that debate centered on state Jeremy Rabkin, a contributor since 1977, is assistant professor of government at Cornell University...
...For decades after World War II, the major economic texts took a dismissive view of the teaching of classical economics...
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...Rights," we are assured by solemn commentators in today's law reviews, have moral claims that make them exempt from mere considerations of "policy," grounded in mere concern for "social consequences...
...When most people have come to accept a particular judicial construction of...
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...The point is not that public opinion really rules the Court in place of "original intent...
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...Conservative challenges havenot triumphed in many fields but they have decisively undermined the self-confidence of contemporary liberalism...
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...Current debates about "the, jurisprudence of original intent" often suggest that it is only in recent decades that courts have begun to depart from the demonstrable, historical intentions of the Constitution's framers...
...Most of this has been forgotten today because the constitutional issues of that era are no longer in serious dispute...
...And that may be all for the best...
...The most aggressive judicial interventions on behalf of property rights or market freedom are likely to fall on states and localities, where some of the least defensible restrictions are imposed...
...And that is not likely to change, even if the Court retreats from some of its more aggressive liberal doctrines over the next few years...
...But the mysticism of locating "rights" in a world removed from the world where everyone else must live—and live with the consequences of judicially enforced "rights"—is not going to flourish in the coming decades...
...Chief among these lessons is that conventional liberal opinion no longer has a good grip on the direction of "progress" and therefore no longer provides reliable protection for the Court...
...That may not be a bad thing, however...
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...And there will be more such cases in the future...
...In retrospect, it seems like an act of sycophancy to celebrate the "boldness" of the Warren Court...
...The one ruling of the Court in the 1950s that provoked the most sustained, united, and bitter criticism in Congress was, in fact, Brown v. Board, which even today's most insistent champions of "original intent" do not dare to challenge...
...ondemnations of Court decisions in the name of historical or original "intent" are not new, then, but they have not often proved conclusive—because, among other things, both the facts and the implications of history have usually been subject to quite varying readings, allowing very broad maneuvering room for sophisticated advocates...
...Send resume to: Jack Wells Room 2114 State Capitol Sacramento, California 95814 L legislatures and was largely focused on whether legislatures should expand the few existing exceptions to the general and generally accepted criminal prohibitions on abortion...
...But if there is not more consensus in the country over fundamental issues in twenty years, there will certainly be more caution on the Court...
...Not all liberal politicians will be hostile to a more aggressive judicial defense of property rights, particularly if states and localities bear the brunt of this trend...
...By permitting an unchecked expansion of federal regulatory controls, the Court has accustomed people to the idea that states have no very strong claims to autonomy...
...I predict we will see much less agitation over "original intent" in twenty years, because I think there will be fewer Court rulings provoking such indignation...
...And partly in consequence of these trends, what we hear about "civil rights" or "human dignity" twenty years from now is likely to be a good deal more tempered than it is today...
...In the 1970s, the Court invoked the Constitution's Contract Clause—prohibiting state laws "impairing the obligation of contracts"—to strike down state laws in two different cases, for the first time in fifty years...
...the Constitution, appeals to "the true" or "original" meaning do, not carry much force...
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...The constitutional landscape in 2007 probably won't satisfy anyone's utopian fancies...
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...A more aggressive defense of property rights and economic liberties will certainly raise protests from various constituencies that feel threatened by particular decisions—unions, perhaps consumer and environmental groups, no doubt many local business groups, and particular protected industries...
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...If you think about law and courts, you may find it hard to recall why, twenty years ago, America really needed an "Alternative" to mainstream opinion journals...
...No justice has ever been a doctrinaire libertarian with regard to property...
...We have forgotten this—as we have forgotten the bitterness of the criticism hurled at John Marshall—because the critics of that era turned out to be just what liberal opinion in that era assumed them to be: grotesque hold-overs from a discredited and unusable past...
...Judicial decisions, too, are beginning to reflect a renewed concern for the legal rights underlying market action...
...In the same way, legal commentary took a dismissive view of the "naive individualism" of nineteenth-century common law doctrine (which had been more or less consciously shaped to the teachings of classical economics in many areas...
...Opponents of the Court's ban on school prayer during the 1960s were even less effective, because they seemed even more readily dismissed as strange relics from the era of William Jennings Bryan...
...Though less urgent and less powerful, many other charges against the extremes of 1970s liberalism—from its embrace of racial quotas to its hostility to religion—will gain political ground over the next twenty years, I think, and receive a more sympathetic hearing from the Supreme Court...
...Supreme Court justices are not appointed for their intellectual capacity and they rarely have the time or the inclination, in any case, to think through their positions with great care...
...The reason is not that the justiceswill be more timid as a matter of personal temperament or more devoted to judicial restraint as a matter of principle...
...Gay Rights" was not a term known to anyone...
...The justices don't like to bet their reputations or the Court's prestige on uncertain partisan opinions...
...After the Court had condemned the death penalty on procedural grounds in the early 1970s, however, the Court voted to allow its reinstatement on an essentially similar basis in 1976 and the opinions of Justices White and Stewart—who changed their votes to allow this reversal—pointedly emphasized the extraordinary scale of public reaffirmations of the death penalty in the interim...
...You'll be able to spend liberally while making a statement that's unmistakably conservative...
...I think the opponents of abortion are going to get much of what they seek over the next twenty years, because the moral force of "the right to life" is inherently so powerful and democratic opinion cannot easily remain suspended on such a fundamental moral challenge over a long period of time...
...Just think...
...Similar and similarly vehement charges were made against Chief Justice John Marshall's Court in the early decades of the nineteenth century (and the charges were, again, often quite plausible...
...Date Name Address THE AMERICAN SPECTATOR DECEMBER 1987 67 Court retains confidence in its policies, the claims of the states will not count for much...
...If the Burger Court had anticipated that its rulings on abortion and school busing and religious establishment would remain bitterly contested into the late 1980s, it is doubtful the justices would have embarked upon them...
...Other Court-watchers have seen it as a sign of the welfare state biases of the justices...
...68 THE AMERICAN SPECTATOR DECEMBER 1987...
...The reason is that the justices will probably have learned some hard lessons in caution from the Court's experiences over the past twenty years...
...For decades after the New Deal, the Court forswore any serious scrutiny of regulatory constraints on the free exercise of property rights or commercial liberties...
...Affirmative action" was merely a lawyer's term, signifying about as much to the average American as "collateral estoppel...
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...The justices had every reason to assume that their constitutional innovations would eventually command broad support, because they were supported from the outset by the most confident and influential voices of "elite opinion...
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...Even at the turn of this century, when the Court supposedly held to doctrinaire "laissez-faire" views, it was always prepared to accept many exceptions and qualifications...
...By 2007, we are unlikely to be hearing much about "original intent...
...The New York Times may still bristle at the arguments of those who oppose abortion or affirmative action, for example, but it cannot dismiss Ahem as crank rants or absurd anachronisms...
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...11 11 0 11 11 11 11 11 66 THE AMERICAN SPECTATOR DECEMBER 1987 rr he aging mediocrities of the Bur-1 ger Court in the early 1970s were surely even less inclined to be "bold...
...Even with respect to recent decisions, today's conservative champions of "original intent" tend to be quite selective (or at least quite evasive) in their condemnations...
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...Last term, the Court gave a much more aggressive reading to the Takings clause of the Fifth Amendment to limit the authority of local zoning boards...
...This is not because courts follow the returns from the American Economic Association but because the renewed intellectual prestige of markets makes it easier to suspect that regulatory restrictions on the market serve no genuine public purpose—and easier therefore to restrict or invalidate them in the name of constitutional protections for property rights...
...there is much to be said for adhering to settled rules as a guard against impulsive or ill-considered tamperings with the status quo...
...except for CT, NJ, and PA...
...ne of the special dividends of this caution, I think, will be a reinforcement of the trend toward caution in relation to other rights or other constitutional claims...
...We tend to forget that in this area, too, judicial opinion followed in step with "respectable opinion" in the academy and elsewhere...
...On the other hand, we are likely to be hearing a good deal more about "property rights" than we do now...
...The Court may indeed return abortion and many questions about religion to the states but only because it has lost confidence in its own recent "solutions" to these issues...
...cause to complain about law and courts, beyond protesting the Warren Court's "coddling of criminals...
...But the more senior justices seem to have assumed that the public would at least go along with the elimination of capital punishment...
...But in 1967 conservative journalists actually didn't have much practical...
...The one ruling of the 1960s that provoked the most sustained, united, and bitter criticism in Congress was the Court's demand for reapportionment of state legislative districts on a one-man-one-vote basis—and here the opponents actually came within a few votes of enacting jurisdiction-stripping legislation that would have effectively reversed the Court's policy...
...And if only to preserve its political support, the Court is likely to give ground before many of these arguments—or rather, before many of the interest groups pressing these arguments...
...The case reports are' littered with contrary examples, to be sure, but the decisions that are more protective of property rights are not just straws in the wind...
...The Court does not like to be under siege and, whether consciously or unconsciously, justices shrink from exposed or extreme stands...
...Many accounts have traced this very deferential posture to the traumatic memory of the Court's bruising confrontation with President Roosevelt in 1937...
...Jeremy Rabkin/The Supreme Court SIABHUHHHUHHHUHUMUNHUHHUHUHHHUNUMI lllllllll llllllllllllll HUHUUMUU llllllllllllllllll Iffimumnommumummummumhuumum ll ll ll ll llllll ll llll ll ll ll ll llllllll llllll E10111111 1011011111111111 THE WORST IS OVER T wenty years is a long time...
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...If they do not have to worry about public opinion as much as ordinary politicians, they still follow the pattern of most other people in public life in looking more to their reputations than their ultimate rightness...
...But the Court's preoccupation with "equality" claims in recent decades—often masked as claims about "freedom of expression" or "government neutrality" toward religion—has made some justices and many more commentators think about "rights" in much more extreme and unbending terms...
...By the late 1970s, the Court was also expressing a much more skeptical view of federal regulatory action, demanding that administrative agencies like the Occupational Safety and Health Administration show more solid evidence that their regulatory requirements made economic sense...
...We may, in fact, have big national problems and big national disputes in twenty years, on matters hardly thought of today...
...Attacks on the Warren Court for "coddling criminals" seemed the most respectable remaining charge against the Supreme Court in the late 1960s, and to this charge the Nixon appointees proved on the whole rather responsive, continually pruning back the procedural protections elaborated by their predecessors...
...Legal commentators tended to take an equally dismissive view of the constitutional doctrines fashioned in the early twentieth century to guard common law rights against legislative or administrative incursions...
Vol. 20 • December 1987 • No. 12
