Michael McGough, senior editorial writer of the Los Angeles Times, wrote a whopper on July 26. It was about politics and the U.S. Supreme Court, and his reasoning – to use the word with wild abandon – rested on the philosophy of none other than Sen. Lindsay Graham. Yes, the same cheerleader for Bush’s War who returned from Iraq to announce that The Surge “is working beyond my expectations.”
Yes, Graham is McGough’s mentor. No, I am not kidding.
Being out of the Beltway, in body and in mind, you probably weren’t aware that Graham is, in addition to being a formidable military analyst, an equally profound legal thinker and political guru. But McGough knows, and at the L.A. Times that’s apparently all that matters.
Thus McGough, relying on Graham’s authoritative pronouncements on the politics of Supreme Court nominations, can take Ted Kennedy to the woodshed for declaring that he and the Senate Democrats were sorely misled by John Roberts and Samuel Alito.
Writing in the Washington Post last year, Kennedy said that both Roberts and Alito had claimed to adhere to a “neutral, modest judicial philosophy.” That was a claim proven false in the high court’s next term, Kennedy charged (note how McGough attempts to minimize Kennedy’s stand by saying he “complained”). Neutrality and modesty went out the window, Kennedy said, ideology came in through the front door.
…they voted to expand the power of the president, reduce restrictions on abusive police tactics and approve federal intrusion into issues traditionally governed by state law.
McGough calls Kennedy’s premise “nuts.” Senators have no right to rely on nominees’ professions of neutrality, he says, since
Supreme Court justices are appointed by presidents who try to leverage those appointments to their own advantage and to that of their party.
Liberals are trying to have it both ways, McGough says: They want the high court to expand liberties for all, but then are forced to deny they want judges to legislate from the bench.
But once you insist that judges, including Supreme Court justices, are different from politicians, it becomes harder to frame an argument against a nominee just because you don’t like the way you think he’s going to vote.
McGough got that entirely wrong. There is no contradiction between wanting courts to extend freedoms and fighting to keep nominees off the court if you think they’re going to restrict freedoms. Despite what conservatives claim – a phony meme that McGough has absorbed, probably in ignorance – judges do not make law. They interpret the Constitution, and they rule on the intent, meaning and constitutionality of legislation. Conservative judges do it, and liberal judges do it. Conservatives constantly accuse liberal judges of legislating from the bench, while liberals accuse conservative judges of restricting freedoms and rights.
And here’s McGough’s first idiocy, which he picked up from Graham: “over time both parties are well served” by presidential preferences so long as a nominee is qualified. That’s self-contradictory. It doesn’t even scratch the surface of the problem his editorial proposes: an ideological Supreme Court. The Roberts court sided with the heavily ideological Bush administration 80 percent of the time. So much for “well qualified.” Qualifications are irrelevant when ideology is writing the decisions.
And pardon me for asking, but who cares if political parties are well-served? The court is supposed to serve the people and the Constitution; thus its motto, as McGough notes, is “Equal Justice Under Law.” It’s carved into the edifice of the Supreme Court Building. But there’s no room for people or Constitution in the Roberts court; that court toes the party line. Thus it gutted Brown vs. Board of Education; used a dubious technicality to uphold faith-based initiatives; subverted Roe vs. Wade; dismissed a wage discrimination lawsuit because it wasn’t filed within 180 days; and in general decimated decades of precedent. All of these decisions were ideological heartthrobs of this administration, and all struck at the heart of the Constitution, our guarantee of equal treatment under the law.
McGough trots out the supposed differences in the conservative bloc – between Roberts and Alito on one side and Scalia and Thomas on the other – as evidence that Roberts’ rightwing court is not as monolithic as it appears. Despite liberal anxiety that Bush would nominate justices in the mold of Scalia and Thomas, Bush actually didn’t, McGough asserts.
Note that neither of the newcomers signed a concurring opinion in the partial-birth abortion case which Thomas and Scalia trashed Roe vs. Wade.
The reality, however, is that the conservatives on the court upheld that ban on “partial-birth abortion” (an inaccurate, politically loaded term that exposes McGough’s own bias). What difference did it make that the conservatives didn’t agree on every detail? And what makes McGough think that Roe is safe? There are growing indications that Roe is indeed endangered by this court. Furthermore, a couple of decisions denying Bush what he wants are no indication of moderation.
All this in support of McGough’s implied notion that the Democrats’ time will come. Some day, eventually, they will get to name the majority of the Supreme Court, and Democrats and everybody who loves them will be happy. Again he relies on Graham’s Law: “Elections matter.”
How disingenuous can a senior editorial writer for one of the nation’s largest newspapers be? Surely he knows how long these four youngish conservative justices might live, and how old most of the liberals are. Doesn’t he know how long it takes for cases to come before the Supreme Court, and how few the court actually accepts? Or the immense amount of time, money, energy, emotion, and other resources that claimants have to gather to have a chance of succeeding in legal battles that take years as they work their way up the federal court system?
Considering his arguments, McGough’s analysis fails on its merits. Considering his source, that’s no surprise. The surprise is that such a shallow thinker has a position of such power and responsibility.
You are so right Montfort. To find out just how far this Court has turned by the clock you need to look no further than their decision allowing preditory pricing. This decision reversed a 1911 court decision banning such practices. Wal Mart can now go into a location and sell drugs below cost to drive out the competion before reversing field and jacking up their prices for drugs. Also, I would like McGough to explain how this isn’t indeed legislating from the bench.
Actually, that 1911 decision (Dr. Miles Medical Co.), based on the Sherman Antitrust Act (outlawing price-fixing and restraint of trade), said that a manufacturer cannot set a minimum price that its distributors must abide by.
The reversal (Leegin) means that discounters may not be able to discount as they see fit. That could raise prices, which of course is inflation. That was a 5-4 decision, with the predictable lineup and Anthony Kennedy playing the queen (“off with his head; she may keep her head; whatever side I’m on wins, and I am so wallowing in the power of it all…”).
The court said that minimum pricing might be anti-competitive, so courts would have to use the “rule of reason” to determine if this is happening, gradually over the years building up case law to figure out what’s reasonable and what isn’t. And guess what? There is no case law. For 96 years minimum pricing has been illegal. So the courts have to start from scratch. Plus draw the line between reason and not-reason.
We’ve already seen how reason governs high court decisions – this is one of them. I mean, what’s “reasonable”? Saying a woman can’t sue for obvious pay discrimination because it took her more than 180 days to find out and gather all the evidence, so she’s outta luck? With guidelines like that, the sky’s the limit. This time, the majority said that precedent can be overturned case-by-case using the “rule of reason.” This nifty little rule is how the high court – oddly, also in 1911 – allowed Standard Oil to grow to monopolistic size. As Justice Breyer pointed out in his dissent, the Roberts majority used arguments that corporations have been making for the last 50 years, yet Congress has never allowed either reasonable or unreasonable price fixing. Price fixing is an anti-competitive method that has been inherently illegal for generations now. Well, until now.
I think you’re conflating this price fixing case with a predatory pricing – actually predatory bidding – case. Overturning the district and appeals courts, the high court unanimously ruled that Weyerhauser had illegally driven up the price of logs by overpaying so much that the sawmill that sued went out of business. With competitors gone, giant Weyerhauser would have the market to itself and could recoup its losses by driving down the bid price: “We’re the only game in town now, buddy, so we’re making you an offer you can’t refuse.”
That has the same effect as dropping the price so much that it drives the competition out of business, the court said. This means that the example you gave using Walmart would still be illegal under this ruling.
Of course, it doesn’t mean Walmart couldn’t do it and get away with it by appealing to the high court’s reason. After all, this is a reason-based court. That’s why it upholds faith-based government programs. According to McGough and Graham, all Walmart or anyone has to do is wait until their party has named enough justices and they’ll get what they want. After all, elections, not principles, are what matter.
And no, I’m not a lawyer. I did recognize part of the price fixing case in your description though, so found a couple of sites to explain it all. I stole it all from there.
Leegin is here: http://wombledistributionlaw.blogspot.com/2007/06/supreme-court-overrules-dr-miles.html
Weyerhauser is here: http://www.lorman.com/newsletters/article.php?cd=18198:671:1:2:11&article_id=671&newsletter_id=136&category_id=3
When this case broke my focus was on stare decisis, what Roberts and Alito said regarding that at there confirmation hearings and what this ruling does regarding stare decisis. My Walmart example was not an appropriate example. More to the point would have been my recent experience with buying an iPod Nano. The price was the same no matter where I went. I learned from Best Buy it was because Apple prohibited the retailer from selling below the retail price that Apple fixed.
The term “vertical price” must have a specific legal meaning but the English translation of those words would seem to apply to the iPod example. Since this was going on before the decision I’m not sure what the true impact is.
The majority ruling clearly redefines the meaning of stare decisis however as it too falls under the guidelines of “rule of reason”. Rule of Reason could well mean that Roe will be overturned because things have evolved to meet the dynamics of current ethical practices, negating stare decisis once again. Think not; just look at the words of the majority below.
“Stare decisis does not compel continued adherence to the per se rule here. Because the Sherman Act is treated as common-law statute, its prohibition on “restraint[s] of trade” evolves to meet the dynamics of present economic conditions. The rule of reason’s case-by-case adjudication implements this common-law approach…. In addition, this Court has “overruled [its] precedents when subsequent cases have undermined their
doctrinal underpinnings.”…
It is not surprising that the Court has
distanced itself from Dr. Miles’ rationales, for the case was decided not long after the Sherman Act was enacted.”
Is there any wonder that this Court has stood “Brown v. Board of Education” on its head. Desegregation has been so successful that resegregation is now the law of the land. That is the practical meaning of this latest set of Supreme Court rulings. And if this isn’t legislating from the bench, I don’t know what is.
Thanks for your very informative response Montfort. You are missed at Slate.
As a Mac user, I’ve often wondered about Apple’s ability to control prices. How has it gotten away with it for so long without a case like this coming to court?
I really don’t think there is such a thing as “legislating from the bench.” Like I said, what there is is interpretation of laws aimed (supposedly) at meting out justice equally. The legislature can then allow its law to be interpreted that way, or it can pass an amendment or a new law that does what’s intended. And that, too, can be interpreted according to the Constitution.
Some could say that Brown and Roe both constituted legislating from the bench, as did the Standard Oil case and the decision upholding the legaltiy of internment of Japanese-American citizens.
The thing is, I imagine you could interpret most cases that way if you had a mind to, if you had some sort of stake in it, be it political, ideological, financial, personal. In such circumstances the phrase “legislating from the bench” becomes meaningless. I don’t think it’s just semantics at work; the courts simply cannot create laws, and I think it mischaracterizes what courts do to attach the word “legislate” to their process. Even when it’s a ideologically driven court, like the Roberts court, the decisions it hands down are still subject to legislative action because it’s ruling on legislation.
When a liberal court – that is, a court that interprets the Constitution broadly to encompass as many rights as possible – issues a ruling like Brown (which overturned decades of precedent), conservatives howl “legislating from the bench! legislating from the bench!” And if a conservative court some day overturns Roe, liberals may claim the same, but I think liberals are more likely to see it as restricting liberty and rights.
But I get what you mean about the practical effect of court decisions. It is now legal for a manufacturer to set a minimum price; that’s a form of price fixing. This court has just made price fixing legal. It has made a form of abortion illegal in at least one state.
Elections do matter, but they shouldn’t matter the way McGough and Graham think. Just like a court ruling can have the effect of legislating, so an act of Congress can overturn a court decision. Elections matter in legislatures, and they should not matter in courts.
One “bite” at a time here (my strongest reaction to McGough having been his notion of what is legislating from the bench and what isn’t, and I have something to add along same lines Dallas raised and Montfort has addressed), but for the moment, just this observation:
If one were to equitably apply Graham’s “Elections matter” edict/law/mandate, then why isn’t it also relevant, Mr. Graham/McGough, that elections of Senators matter too? If the nation had elected a rubber-stamp, all-Bushie-all-the-time Congress too, then so be it.
However, the Constitution gives the SENATE the right AND responsibility to do “advice and consent.” If Senators don’t do their jobs and take consent as serious business, ask serious questions and expect/demand serious answers before giving their “Aye” to a President’s nominee, just as Ted Kennedy advocated, then aren’t the Senators then saying that their own elections didn’t matter?
Why does “Elections matter” only apply, for Graham/McGough, to the President?
btw, imo, Ted Kennedy was not lamenting being in the minority and having to ultimately swallow Bush’s nominees. Rather, he was addressing and/or speaking on behalf of his fellow Democrats who voted for Alito and Roberts on “good faith” (and maybe a few liberal Republicans like Snowe who might also be wondering about the same apparent deceptions in testimony Kennedy laments. Sure elections decide who has a majority in the Senate, but with honest answers to honest questions, not tolerating a refusal at hypotheticals*, with all the real knowledge that nominees should be imparting to the Senate about their ways of interpreting the Constitution, honestly, maybe — I suspect Kennedy thought — there might have been a filibuster (at least threat) that the minority Democrats might have mustered, if only in the name of reminding a President that his nominees have questions to answer and consent to be EARNED, not taken as a given. Senators were elected to exert their perspectives too.
* I swear Bush has taken his ‘schtick’ of “Nupe. Sorry. That was a hypothetical. Won’t answer. Wouldn’t be prudent.” from observing the ‘success’ of stonewalling Judicial committees by nominees, all ‘stoned up’ by the Rove testimony-prep machine.
btw #2:
Given the following excerpt from a McGough piece from July 25, 2005 (as “editor at large in Post-Gazette’s national bureau”, pre-LA Times) regarding Roberts’ nomination, isn’t it a bit disingenuous or at least inconsistent to say what he’s saying now?
A big part of what Ted Kennedy was calling for was a confirmation process which gives the Senators something substantive in terms of nominee’s responses (which requires equal access to documents as the White House has, ability to probe nominees more profoundly, sustainedly, and sticking to substance rather than a nominee’s biographical fluff und drang), something McGough seems to taken as a given here — that Senators would actually be able to extract “promises” … and then decide if they believe them. Kennedy’s argument is not simply that Roberts and Alito deceived: his focus is on a process which allowed them to get away with it due to lack of access and focus by the Senate Judiciary, too much skirted by stonewalling, and left in the realm of unknowns about the nominee’s judicial thinking. No?
Stevens in an interview broadcast on C-SPAN (see its website) referenced the pricing ruling as an example of why HE is really a “judicial conservative.” He noted that on policy grounds, he might have followed the ruling (one forgets sometimes he is after all a Republican nominee), but judicially followed precedent.
BTW, courts realistically “make law” in a fashion, as shown by the term “common law.” Like agencies, they fill in open ended provisions. All sorts of judges do this, state and federal, so cries of “make law” like “judicial activism” is often used just to becry a disfavored decision.
It is true that one can note they are just interpreting the Constitution etc., but it is also commonly understood that judges do in effect “make law,” and lawyers and judges themselves say as much. They might not be using the term the say way as the editorial, but there is some simplistic use of terms here as well.
Here is an article by a law professor, Daniel Solove, addressing this issue that casts some light on it. I don’t vouch for his authority, but my guess is that he’s as reliable as any, given that the subject – the Constitution and law – is all about interpretation anyway.
It’s interesting, when you think about it, how our nation is founded on a document and legislation that can be so resistant to objectivity. Sometimes I think that pinning down the meaning of the Constitution is like trying to herd cats. Yet look what it’s wrought – the nation that we love and that drives us crazy.
I wish Mr. Solove would have followed through on what he thought might have happened in his very significant example cases if the judges not “legislated from the bench” – which he defines as “principled conservative process-based approach”:
Don’t some of these requisites seem at least occasionally incompatible? How can original intent and text always be compatible with deference to the legislative? How can strict interpretation of the text always be the same as original intent? Yet both of these are part of the same conservative approach. In Brown, following the Equal Protection Clause meant finding previously hidden original intent in the text, not to mention throwing out both precedent and deference to the legislative, two facets of the conservative approach, to enormous consequences.
In Solove’s examples, the conservatives got what they wanted regarding the internment of American citizens who happened to be of Japanese descent. The court deferred to Congress. I don’t understand what Solove means when he says he wonders what would have happened here if the justices had followed a conservative approach, because he says deference to the legislative is also part of the conservative approach – and that certainly conflicted with the Equal Protection Clause by any interpretation of the text.
By my reading, they lost every other one of those cases – meaning the court found rights in the Constitution that hadn’t previously been recognized. And the justices did this believing that they were following the original intent of the Constitution, an intent that had either not been interpreted at all or had been interpreted incorrectly. And though following original intent is a conservative approach, it upsets conservatives to no end when the court finds, for example, a right to privacy in the original intent. (I’m sure I’m missing something here, or inferring his meaning wrongly, but on the face of it, that’s what I’m seeing.)
Another odd thing – in addition to the frequent amorphousness of the Constitution – is that the courts always use either precedent, the Constitution, and/or judicial deference to the legislative and executive in reaching their decisions. What other ways are there to reach decisions? And these decisions can seem either conservative or liberal – or rather right or wrong – depending on who’s doing the analysis.
Yet Solove says that judges have gone so far afield of the original text of the Constitution (but how could the founders have anticipated segregated schools or the Pentagon papers?) that precedent is the only thing that gives the document any stability at all. That, too, is a conservative approach that conservatives often get very upset with. (I wonder what his political affiliation is.)
I think the bottom line, then, is that he’s right. The phrase is no more than words strung together. Liberals think that “legislating from the bench” is an invective thrown thoughtlessly and hypocritically about by conservatives, who merely want judges to legislate according to a politically conservative agenda – which means don’t change anything unless it’s to reverse previous liberalizing laws and decisions. Though the Roberts’ court is defenestrating the conservative tenet of precedent like a Mafia hit man, conservatives are beside themselves with glee.
And so he thinks the phrase “legislating from the bench” is virtually meaningless and gets in the way of thinking and discussion about the conservative approach toward judging. I agree, but would add that it gets in the way of thinking and discussion of the process of judging, period, regardless of the approach. It’s time we do away with this political slogan and come to terms with the way the judicial branch of our government works, because there is simply no other way for it to work. The legislature literally makes law. The courts figuratively make law. Both kinds of law rule. The executive can either issue executive orders, veto legislation (or, now, use signing statements), or support or undermine law depending on the degree of enforcement – thus also figuratively making law. This is just how our government works. And actually, I think the founders might just agree that, except for signing statements (to me an impeachable offense), this is what they had in mind when they wrote a Constitution so open to interpretation.
And thus, to return to my original point, McGough is displaying his sophistry when he says Kennedy’s premise is “nuts.” The Senate should indeed be able to rely on what Supreme Court nominees profess to be their judicial philosophies, and that their approach should be neutral, not based in a political ideology. Elections should not matter, or not matter so much. The winds of ideology are too variable, depending on the politics of the era and the immediate circumstances (9/11, for example), to be allowed to so profoundly influence interpretation of our amorphous Constitution.
The only way we will get even a modest degree of what Solove calls stability born of precedent is to appoint justices who, even though they are always a product of their era, regard the Constitution and the precedents by which it has evolved with political neutrality. This is the only way the Constitution can evolve further in the way the founders originally envisioned – toward human rights and liberty.
I think I would choose slightly different terms than “literally” and “figuratively” to characterize the branches’ relationships to making law. This probably has inadequacies too but my first reaction is to think that the legislature makes laws theoretically and both the executive and the judicial, in their respective ways, play out how those laws function pragmatically or in actuality. ??
Meanwhile, I find it yet another roll-over-and-play-deadism of the Democrats that they don’t fight fire with fire each and every time some GOP indignantary proclaims that SCOTUS is “legislating from the bench.” It happens at least as much from SCOTUS heading rightward as heading leftward, and it’s absurd that the right have been allowed to get away with this mantra unchallenged.
Solove’s article looks like the tip of a constitutional-law-course iceberg in itself. In re your wondering about his politics, I see he specializes in privacy and technology, which has led him to write, relevant to the renewed topic of surveillance, the following 2005 piece which makes him seem to be, at the very least, wary of Bush and, as such, either a principled conservative of the dying breed or more of a liberal: