The Fallen Pillar
Over at Gin and Tacos, there is a question — rhetorical, of course — whether the Supreme Court can be trusted to invalidate a law that would allow the government to detain people without according them due process. Constitutional challenges to due process violations, filed during the Bush years, have not seen much vindication in the courts, even while the same period of time saw an unprecedented, purportedly grass-roots, assault on the judiciary — and more specifically, its lack of “accountability” to the public. The lesson to the courts is clear: you may weather the storm in something like the Terry Schiavo case, but God help you if you dare frustrate the wishes of the public when it comes to fighting terrorists.
It is easy to see the Bush era as the time when the Supreme Court became the lapdog of the Executive and powerful private entities that fund politicians, but I believe the Supreme Court suffered the most devastating blow to its independence back in the late 1930’s, and we today are still living with the effects of what transpired between the three branches of government in those days.
In high school, the story is generally taught as follows: The country was reeling from the Depression and our brilliant and progressive President and his Congress enacted desperately needed laws to right the economy. But alas, the Supreme Court, composed of very old and possibly senile men, kept invalidating those laws from their Ivory Tower for some incredibly legalistic and technical reasons. Fed up with the Court’s unwillingness to see that this was no time to let the finer points of law get in the way of pragmatism, FDR introduced legislature that would “infuse new blood” into the Court even if the stupid old geesers refused to retire or die. That reminded those old men on which side their bread was buttered, and they did a complete 180 on their earlier rulings and began to let FDR’s economic legislation stand, because dammit, those were good laws. And the way the Court flip-flopped like that was hilarious.
The books I was reared on were all sympathetic to the FDR (which is not a surprise — he is probably one of the three most admired American Presidents, the other two being George Washington and Abraham Lincoln), and as a fledgling liberal, I liked how the President yanked those old losers in line and exposed their hypocrisy. But later, in law school, I read the cases that brought about the Court Packing Plan, and I began to have serious misgivings about the whole affair.
Preliminarily, in general, it seemed increasingly disturbing to me that one branch of the government was able to bend another to its will in this manner, especially since the latter is the only branch of the federal government that is independent of the whims of voters and whose job is to prevent the majority from violating the Constitution. If nothing else, it represented the irreversible crossing of a symbolic boundary; like the very first time lovers lose their tempers and hurl insults at each other, you know it will happen again, repeatedly, and grow worse; or like the very first blow landed between spouses marks the beginning of the end. FDR demonstrated how a strong and popular President could bring the Court to heel, if need be, and as a result, the Court was no longer sacrosanct.
Then there were the cases themselves. It is easy to disagree with the Court’s majority on issues such as the supposed unconstitutionality of minimum wage laws, but the biggest bone of contention between the Court and the President was Schechter Poultry Corp. v. United States (1935) and its two companion cases, in which the Court unanimously invalidated a statute whose effect was to delegate Congress’ law-making power to the President. (And this was by no means the only instance in which Congress authorized FDR to make legislation through Executive Order.) The Constitutional violation in the Sick Chicken Case was not just real, but egregious, for it subverted the most fundamental philosophy underlying the US Constitution, that of the separation of powers. The fact that Schechter was apparently an unsrupulous businessman, who slaughtered sick birds and sold them unprocessed (so that he would not have to hire additional workers to pluck, clean and quarter the carcasses) obscures the issue: the Constitution does not care whether power is abused for good or for ill. The philosophy that the Framers embraced is that any concentration of power in single hands, even benevolent hands, eventually leads to a police state. And they were right: for ten points, can you guess who the next President after FDR was that made extensive use of Executive Orders?
Several more decisions came down after the Sick Chicken Case, invalidating federal legislation on Commerce Clause grounds. (The Constitution grants the Federal government specific, “limited” powers, including the power to regulate interstate commerce. General police power, however — i.e. the general power to make laws for the good of the public — is reserved entirely to the states, at least in theory. Federal legislation that aims to regulate “local” activity is, theoretically, unconstitutional.) Fed up with the Court, FDR openly criticized its members, going so far as to suggest that they were senile. In early 1937, he introduced a bill which would allow him to appoint an additional justice to the Supreme Court, up to a maximum of six, for every sitting justice who did not resign or retire within six months after reaching the age of seventy. In retrospect, FDR probably could never build enough support to have his Court Packing Plan passed; but the political pressure exerted on the Court was nevertheless immense, and the Court was cowed. After February 1937, the Supreme Court, or at least a majority of its members, would rubber-stamp federal legislation, never hesitating to fall back on questionable reasoning that can be summarized as: “The powers of the Federal government are limited, unless they aren’t.” Wickard v. Fillburn, the decision that upheld a statute which limited the amount of crops that a farmer could grow for his own consumption is particularly striking in that it radically expanded the Federal government’s authority to enact police-power-type legislation. In fact, it would not be until 1995 that the Court would, in United States v. Lopez, invalidate a federal statute on the ground that it exceeded Congress’ power under the Commerce Clause.
But the biggest fallout from FDR’s War on the Court was Korematsu v. United States, the decision which upheld the executive order mandating the “voluntary” relocation of Americans of Japanese ancestry to detention camps. There is much in that decision that’s shameful and infuriating, and I heartily recommend anyone to read the whole thing as an example of a blatant miscarriage of justice by the highest judicial body of the supposedly freest country on Earth. Highlights include reasoning that because war imposes some degree of hardship on everyone, the Executive is authorized to impose any degree of hardship on any group of people that the Executive deems suspect or dangerous. The majority also specifically authorized the military to detain Japanese Americans indefinitely, entirely at its discretion, not even limiting that power to the duration of hostilities with Japan. At the same time, the Court, with its tender sensibilities, objected to the use by Korematsu’s lawyers of the term “concentration camps” on the ground that the term had “ugly connotations”. At no point did the majority mention Due Process. But the reason I believe Korematsu is the ultimate consequence of FDR’s War on the Court, despite the fact that it did not deal with economic issues, is that the majority’s reasoning distills to the same principle that inspired its decisions in post-February 1937 Commerce Clause cases: If the government tells us that it really needs to pursue this policy for the good of the country, then we’ll uphold the policy as constitutional. The War on the Court turned it into a bunch of yes-men. (Of course, after Lopez, there came Citizens United v. FEC, but the latter merely demonstrates a shift in the source of threat to the Court’s existence, or at least its independence.)
The most disturbing thing about Korematsu today is that it was never overruled, and its reasoning has never been formally abandoned. In the decades following the decision, it turned out that the government had lied to the Court when it claimed that it had intelligence proving the Japanese-American community to be a threat to national security. Korematsu’s conviction was vacated, apologies were issued and some restitution was paid. But while all this likely provided a degree of personal vindication, there is little solace from the legal standpoint in the government’s acknowledgment that it had no right to detain the Japanese-Americans. Korematsu is still “good law”, and these days, the linchpin of its relevance is whether the United States is in a state of war. When the Administration calls America’s fight against terrorism “the War on Terror”, the reason is as much a legal one as PR; if we are at war, then Korematsu applies, and the government can detain not only anyone suspected of being involved in terrorism, but anyone sharing the most tenuous connections with those who are terrorists.
So can we trust the Supreme Court? It has been a compliant arm of the Executive for a long time, and there is no reason to believe that’s about to change. Except, of course, if the fight is between the government and corporate interests seeking to undermine it — that’s different.