Our highest court showed once again this week that despite its protestations to the contrary it is very much a politicized body
For more on pruning back executive power see The Pruning Shears.
The Supreme Court is a political body, and it is most obviously political when it addresses the most politically charged cases. In the past generation the best example was probably Bush v. Gore. Consider: A court that successfully touted itself as a champion of restraint and deference to the states was greeted with the mother of all states’ rights cases. The Florida Supreme Court ordered a recount of ballots guided by the state’s language for determining voter intent. This is not metaphysics, but the Supreme Court ended up reasoning in a manner that made it seem like the state court had ordered officials to determine how many angels can dance on the head of a pin. A properly restrained court would have ruled that the lower court ruling was proper and Florida had a reasonable layman’s explanation for how to proceed. Instead the court suddenly became tremendously concerned with parsing the language for deciding voter intent and overturned the decision in a touching display of concern for ballot standards that surprisingly enough hasn’t been revisited since.
As a group they clearly have a soft spot for Republicans, and the forty third President has been a primary beneficiary ever since that happy moment of judicial activism. This week that same famously verbose court rejected without comment an ACLU lawsuit over the administration’s warrantless wiretapping program. The lawsuit was originally dismissed in the 6th U.S. Circuit Court of Appeals because the plaintiffs could not establish that they had been victims of the program (i.e. had no standing). If as seems to be the case the Supreme Court prefers to start with the decision it wants and walk the judicial reasoning backward (a sort of reverse induction) this case presents some problems. It’s tough to explain why anyone doesn’t have standing when everyone is caught up in it. If the NSA has been vacuuming up data wholesale for years then my dead grandmother has standing because her data was getting sucked up before she went to her reward. How can you explain that people caught in a comprehensive spying sweep don’t have standing? Better not to comment.
The suddenly-timid justices seem unwilling to confront the administration and the desire to not embarrass a fellow Republican has to be considered one of the possible reasons. One unfortunate bit of Constitutional gaming they allow by that is the 6th Circuit’s surprising logic (via) that the harm alleged in the lawsuit was “likely to persist even if the NSA was required to obtain warrants”. In other words, outcome trumps process. Doing something illegal is fine as long as the end result is the same as if it had been done legally. It’s a new twist on the idea that the ends justify the means. Even worse, the Court once again tacitly approved the idea that if the Executive branch is doing something illegal it may quash challenges by simply ceasing the activity. Saying “well as long as you’ve stopped we’ll just leave it at that” is nothing more than a form of retroactive immunity. The statute of limitations has just been shortened to the moment you announce your intention to follow the law. Mafia bosses looking to leave a life of crime must be delighted. And as the same article points out, there is still the very current issue of whether the President is allowed to conduct wartime surveillance outside of Congressional authority. I know the Court may prefer to wait until a more suitable President is available to rule against on this topic but a lot of us would like to see them take it on while they’re in the neighborhood.
In Bush v. Gore the Court wrote “None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.” It is a measure of their dishonesty that their concept of what is a vital limit and what they are forced to confront routinely breaks along transparently political lines, and it is a measure of their contempt for the public that they piously describe themselves as outside the political sphere when they obviously are in the thick of it with relish. It would be a breath of fresh air for them to admit as much to themselves and the rest of us.
