In recent weeks, the court headed by Bush-appointee John Roberts has attacked the sort of individual free speech, which the Bill of Rights was written to protect, while expanding the ability of corporations to warp and dominate the political debate. It has rolled back basic civil rights protections, especially in the area of public education. And it opened the way for the renewal of the sort of business combinations that the anti-trust and anti-monopoly laws of the past century were designed to prevent.
In other words, this court has
gotten just about everything wrong -- so wrong that its rational
members have begun to express disbelief with regard to the extremism of
the new activist majority.
Make no mistake: Chief Justice
John Roberts and Justices Samuel Alito Jr., Antonin Scalia and Clarence
Thomas are right-wing judicial activists who seek to use the court to
legislate from the bench.
Rather than interpreting the
law, they are taking up cases with an eye toward advancing a political
agenda. It is an agenda that is in conflict with established law, the
will of the American people, and the intentions of the founders. And
when the relatively more moderate Justice Anthony Kennedy joins them to
form a five-member majority on the court, Roberts and his judicial
wrecking crew is free to attack the Constitution without restraint or
mercy. There is no question that the court is a reflection of the
Bush-Cheney White House. The president's appointments of Roberts and
Alito have tipped the balance far to the right.
And, of
course, this court will not disband when George Bush and Dick Cheney
leave Washington. Like the Iraq quagmire, New Orleans, the nation's
battered manufacturing sector, etc., it is part of the mess that the
president and vice president will leave behind. It will continue to do
damage to the Republic, as Roberts and his activist acolytes continue
attacking civil rights, civil liberties and, above all, regulations on
the corporate sector to which they owe their highest loyalty.
What
can conscientious citizens do? First, they must recognize that the
federal courts are, by design and in practice, rigidly anti-democratic
institutions. Judges are not elected but appointed. And they are
appointed not for terms that might make them accountable but for life.
During the Progressive Era, when the anti-trust laws the court is now
targeting were developed, visionary leaders such as Wisconsin Senator
Robert M. La Follette, warned of the danger posed by powerful but
unaccountable federal jurists who made up what progressives referred to
as America's "Judicial Oligarchy."
Having battled with
jurists who took the side of robber barons over reformers in the early
1920s, La Follette told the American Federation of Labor, "Today the
actual ruler of the American people is the Supreme Court of the United
States."
The remedy? La Follette and the more radical of his
populist and progressive allies believed that federal judges should be
elected -- as they already were in many states. Milder reformers, such
as Teddy Roosevelt, proposed establishing systems for recalling judges,
or for regularly scheduled popular votes on whether appointed federal
jurists should be allowed to continue in their positions.
That
may sound like a radical idea, and in some senses it is. Shifting from
an appointed to an elected federal judiciary would require tinkering
with the Constitution. But this would not be the first time that a part
of the document was altered to protect its whole -- only in the latter
half of the 20th century, for instance, were procedures developed for
filling vice presidential vacancies.
Certainly, the notion
of electing federal judges did not seem so far-fetched in the first
years of the last century. Until 1913, the US Senate had been an
appointed body -- with its members selected by state legislatures
rather than voters. The 17th Amendment to the Constitution turned the
Senate from an American version of the English House of Lords into a
representative chamber when it established the direct election of
senators. That was one of the great democratic advances in the long
history of the American experiment. And it ushered in a period of
economic, social and political reform, advanced by progressive senators
of both major parties and the vibrant state-based third parties of the
era.
La Follette, who served as one of the first of the
directly-elected senators, did not believe that democracy should stop
at the Capitol. When he campaigned for the presidency in 1924, he did
so on a platform that promised to seek the direct election of the
president, the vice president and the federal judiciary. For the
senator who pledged that "the people shall rule," reforming the Supreme
Court was essential to establishing democracy. "Either the court must
be the final arbiter of what the law is, or else some means must be
found to correct its decisions," he told 14,000 supporters gathered at
Madison Square Garden.
His Republican opponent, Calvin
Coolidge, a man more averse to democracy than any occupant of the Oval
Office until the arrival of the current president, condemned La
Follette for suggesting that the people ought to decide who would judge
the laws of the land. "The time to stop those who would loosen and
weaken the fabric of our government is before they begin," grumbled
Coolidge.
La Follette did not back down. "Always these
decisions of the Court are on the side of the wealthy and powerful and
against the poor and weak," he said.
Yes, the senator
admitted, there were risks in setting up a system for electing judges.
They were, he said, the risks inherent in democracy. But, for the poor
and the weak, La Follette argued, these risks were certainly fewer than
the risks inherent in oligarchy -- risks that have been well
illustrated in recent weeks.
John Nichols is the Washington correspondent for The Nation magazine.
© 2007 The Nation
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Released: 09 July 2007
Word Count: 1,000
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Writings 
As the Bush-Cheney administration enters its final 18 months, the White House is getting competition from the U.S. Supreme Court for status as greatest threat to the Constitution and the nation for which it is supposed to serve as a blueprint.
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