What Are Judges to Do? Be Partisan Warriors, Sayeth the Left

This article appeared on American Spectator (Online) on April 21, 2020.
  • Related Content

These days the Right and Left look at jurisprudence differently. They have different views of what judges are for and how they should perform their duties.

Consider the question of how the Supreme Court should decide a constitutional question. Generally — obviously there can be exceptions on both sides — conservative/​libertarian scholars believe the court should conclude what the constitutional provision was supposed to mean. Liberals/​progressives believe jurists should rule in the way that best promotes the Left’s policy agenda, usually couched in terms of helping the poor, disadvantaged, minorities, middle class, working people, etc. (In fact, progressivism often is at odds with many if not all of these groups, but few modern liberals are willing to admit that those they claim to represent often look at the world differently.)

For instance, Adam Cohen, a former New York Times editorial writer, wrote an article for the Washington Post (a double dose of mainstream media!) adapted from a recent book. The article’s title: “Supreme inequality: The high court has been siding with the rich against the poor since Nixon.”

If the piece were an investigative scoop on how the justices gathered and debated how rich people wanted them to vote, he would be in line for a Pulitzer. Even better if he documented how court members called up a few carefully chosen millionaires and billionaires — imagine John D. Rockefeller, Donald Trump, Bill Gates, Mark Zuckerberg, Jeff Bezos, Andrew Carnegie, Sam Walton, Cornelius Vanderbilt, John Jacob Astor — to receive instructions on how to vote. The Left could feel triumphant, having shown yet again how the wealthy were the fount of evil.

That is not what Cohen does. Rather, he complains that the outcome of particular cases strengthened inequality, or at least did not lessen inequality. And he suggests that is why the jurists decided the cases that way.

He places special blame on Nixon appointee Lewis Powell for the fact that, over the half century since he served on the high court, “The Supreme Court would repeatedly rule in favor of corporations and the rich, and against the middle class and the poor — undermining unions, paving the way for lower taxes and generally playing an underappreciated role in reshaping the economy in ways that hurt working people.”

Of course, this assumes that a redistributive/​socialist state is best for the poor and middle class. In practice, such systems sacrifice both liberty and efficiency and turn economic decisions over to an empowered and engorged state run by Adam Cohen and other members of the progressive nomenklatura. If you believe that this would improve the lot of most Americans, you probably spend your Halloweens outside waiting for the Great Pumpkin to rise and eradicate evil from the world.

Perhaps more perplexing, this analysis of the Supreme Court does not consider what the Constitution might require. There is no original or fixed meaning, no founders’, proposers’, or ratifiers’ intent, no commonly accepted meaning. Never mind that the Founders designed the nation’s fundamental law and the government created thereby to limit populist abuses, such as the use of politics to undermine justice by essentially stealing from others. In Cohen’s world, all that matters is which faction you are beholden to.

Among Cohen’s bête noire is Buckley v. Valeo, the 1976 decision that first recognized political contributions as a form of protected speech. He might not like the ruling, but the decision makes sense. Some people aren’t able to reach millions of people by writing editorials for the Gray Lady and instead give money for other people to manage campaigns or run ads. Moreover, given government’s ability to destroy business operations and curtail personal freedoms with the stroke of pen, the ability to contribute for or against politicians is essential.

As for promoting inequality, one of the great lessons of politics is that money cannot buy elections. In the 2020 campaign, hyper‐​wealthy Michael Bloomberg spent nearly a billion dollars to win 55 delegates. All that money could not insulate him from Sen. Elizabeth Warren’s scorching attacks and his feeble defenses. Moreover, rich people are not necessarily conservatives. On August 23, 1972, the New York Times ran an article entitled “Young Millionaires Are Big Contributors to McGovern.” Among McGovern’s backers were beneficiaries of agriculture, automobiles, banking, cable TV, cosmetics, finance, insurance, investment, and publishing.

Cohen also denounces “Janus v. AFSCME, which held that government unions cannot require nonmembers to pay fees for being represented in collective bargaining.” No self‐​respecting progressive can approve any decision that reduces funds available to labor unions. But the 2018 judgment was based on the First Amendment. Even a left‐​wing journalist should appreciate the free‐​speech implications of the government requiring people to support organizations that take highly controversial political stands. Speech is not free if it is compelled.

Nor does empowering government employee unions advance equality. Labor leaders typically do extraordinarily well compared to the rest of the members. Moreover, many unions use their dual influence as negotiators and lobbyists to mulct taxpayers, who are paying the employees’ salaries. Many government workers earn far more than those they supposedly serve. As a result, in some city and state pension costs have raced out of control, threatening governments’ solvency.

Then there is San Antonio Independent School District v. Rodriguez (1973), in which the Supreme Court rejected the claim that states had to provide equal amounts of money to public schools irrespective of district. Alas, even doing so would not yield equal outcomes, given the many factors involved in education. In fact, private schools, including inner‐​city parochial schools, long have outperformed their public competitors while spending less.

In any case, the U.S. government is federal, giving the national government only specific powers and leaving states with general jurisdiction. Schools traditionally have been local. If Cohen doesn’t like the constitutional system, he should campaign to change it, not complain that five justices fail to disregard almost two centuries of law and sua sponte seize control of the educational system, radically transforming American school finance.

Finally, there is Milliken v. Bradley, the 1974 case that said the Constitution did not require busing across district boundaries. Here, at least, Cohen acknowledges that many of those working people he otherwise claims to champion would disagree with him. Segregated schools should distress us, as should the underlying housing patterns that create the problem. But a constitutional provision enacted to prevent government from consciously treating people differently based on race offers no mandate for government to engage in social engineering by consciously treating people differently based on race.

Cohen complains that “it’s ordinary people who need protection against big corporations and plutocrats.” Ordinary people need protection from a lot of people and organizations, but that is not the role of judges. Courts are supposed to impartially enforce the law, not make it up as they go along to advance a favored interest or ideology. If Cohen doesn’t like the law and Constitution as written, he should work to change them. Then the courts could enforce different rules.

Instead, he wants Democratic candidates to “promise voters a court that puts ordinary Americans ahead of the 1 percent.” Alas, there is no principle there, only an arbitrary preference for using the state to plunder those who lose the next election. “The Left has decided that the judicial branch is to be used as a second, unelected legislative branch to enforce its political choices of the moment,” warns Jeffrey Lord in The American Spectator.

Yet many progressives want to go much further than Cohen. Senate Minority Leader Chuck Schumer (D-N.Y.) explicitly threatened justices who might vote to allow restrictions on abortion clinics. The original Democratic presidential candidates offered a multiplicity of plans to blatantly “pack” the courts liberals once defended from attacks by the Right. All of these measures would turn the judiciary into another political branch. This isn’t the first time that partisan activists attempted to seize control of the judiciary. But it might be the most dangerous.

Turning the courts into just another political arena would offer no certain protection for any right, however fundamental. This should give even partisans like Cohen pause. Once the victims of his approach retake political control, they will have every incentive to return the favor.

This is why the Founders created a judiciary insulated from politics. Alexander Hamilton wrote in Federalist No. 78: “The independence of the judges is equally requisite to guard the Constitution and the rights of individuals.” Jurists are to rule for the law, not the party, irrespective of how appealing the latter might be. Judges are not to surrender to one partisan litigant or another or follow any party line.

Ultimately, the attempt to turn judges into partisan operatives threatens our constitutional order of limited government and individual liberty. This system benefits liberals and progressives as well as libertarians and conservatives. It needs support from all groups to survive, let alone flourish.

Doug Bandow

Doug Bandow is a Senior Fellow at the Cato Institute and former Special Assistant to President Ronald Reagan.