When the delegates to the American Constitutional convention met in 1787 to discuss a new order of the ages, they had a healthy concern for both human virtue and human flaws. They did not consider men to be entirely good or evil. They thus developed a scheme that would separate the powers of government in the hope that if the unlettered masses became too strong through the popularly elected Congress the Supreme Court might restrain them. If the president grew too strong, too much like King George III, both the Congress and the courts might restrain him. Thus it was that we got the balance of powers. Clear functions were delineated. The Congress would do legislation. The president would enforce the legislation. The Supreme Court would be neither the enactor nor the legislator but would provide legal oversight. In this scheme it was very clear that the Supreme Court was not to become the legislative body. If some enactment were held unconstitutional it could send it back to the Congress but it would not be responsible for enacting legislation itself.
Over the course of the next 200+ years this restraint upon the Court has not worked well. The temptation for the Court to exercise power has been almost irresistible. The court has evidenced a consistent, almost dependable, bias on behalf of corporate enterprise as opposed to enterprises emanating from the people, putting itself over and over in opposition to the Congress, to the president and to the rights of people who are not in positions of economic advantage. In the 19th century, for example, the Court declared Dred Scott, a slave, to be merely property and not a human with human rights. In 1895 it went on to declare unconstitutional a measure providing for an income tax, and then it gutted the Sherman Antitrust act. In 1905, it killed a New York state law limiting working hours. In 1917 it did the same to a prohibition against child labor. In 1923 it wiped out another law that set minimum wages for women; in 1935 and 1936 it struck down early New Deal recovery acts. Throughout this whole period the court evidenced a hostility to anything that interfered with corporate profits, including rights of labor to organize, equal rights of women, health protections for children, or provisions for the elderly. That’s a very broad list, and the court opposed advances for any of those constituencies.
Then in the 1970s, Justice Lewis Powell literally took the United States Chamber of Commerce into the chambers of the United States Supreme Court and pioneered a complete, consistent corporate rights theory. Thereafter, in 1976 the Court struck down portions of a congressionally approved campaign finance law. In 1978 it struck down limits on corporate spending at the state level in citizens referendum campaigns. Thereafter, and consistently, Justice Powell led a majority of the court to overturn the legislation by either Congress, states, or school districts, that regulated oil, coal, utility corporations, tobacco corporations, chemical and pharmaceutical corporations, alcohol corporations, banking corporations, all of which had claimed corporate rights to free speech. In every case, federal, state, or local laws, duly authorized by their legislatures, were invalidated.
Taken as a whole, these decisions indicate that over the 200 plus year history of the republic one of the institutions intended to balance the powers of the Congress and the presidency has become much more than a balancer. It has become the high citadel of corporate privilege. Unfortunately, nowhere has this usurpation of power become more egregious than in the recent decisions of the John Roberts court. This court has not just acted like an extension of the Chamber of Commerce; and now it has done more than become a guardian of corporate privilege. It has become an enactor of corporate privilege.
The Supreme Court of the United States has in the last five years taken unto itself the authority to become a legislative body. Keep in mind that it is the legislatures, or the Congress, that are intended in accordance with our constitutional structure, to be the researchers of facts, the molders of disparate opinion into a consensus as the basis for legislation, and therefore to be the masters of reconciliation and compromise. That is the job of the popularly elected Congress, representing the whole country, and was never intended to be the job of the Supreme Court of only nine persons representing no one. The Court may review a piece of legislation and decide that the factual basis is insufficient, it may send it back to the Congress for more work; it may declare that other portions of the Constitution require some factual consideration of the Congress to be overruled. But it may not simply make up the facts itself.
Unfortunately, and in spite of his disingenuous assertions of neutrality during his confirmation hearings, Chief Justice John Roberts has undertaken a personal crusade to roll back the social legislation of the 20th century and to return the country to the unbridled, uncontained, and unregulated corporate amorality of the 19thcentury. Thus in a few short years, John Roberts has become the most active legislator of conservative opinion in the history of the Republic. As a consequence, this Court has made it more difficult to sue employers for workplace harassment, has barred remedies for pay discrimination, rejected a class-action suit of women who were denied raises and promotions by Walmart, and has declared unconstitutional a 1988 law that subjected corporate officers to fraud charges. In case after case, the Roberts Court has reduced the rights of employees, or the right to class-action remedies, or has increased the restrictions on standing to the greater protection of corporations. The effect has been to nullify, or limit substantially, the gains for women, minorities, and workers that were celebrated as the hallmark of American progress during the course of the 20th century.
All of that is bad enough. These are all matters of substantive retrogression. But the Roberts Court is not only deconstructing New Deal social legislation, or workers’ protections, or the rights of women. It is, even worse, deconstructing the Constitution.
This last week the Roberts Court entered full-fledged into the business of the Congress and effectively preempted that legislative body. The Congress had spent months on hearings and deliberations in order to establish certain limits on campaign finance contributions. Under the constitutionally guaranteed separation of powers declared by the Founders to be bedrock of the new Republic, those deliberations and that fact-finding were to be the province, not of the courts, but of the legislative body. The campaign-finance law that had established these campaign-finance limits was bipartisan, authored by Senators McCain and Feingold a Republican and a Democrat. Those senators, and the Congress as a whole, had concluded that massive amounts of money poured by single individuals into multiple campaigns distorts and corrupts the election process. The senators and the Congress ought to know; they are the ones who run for election and have to raise the money. They declared that massive amounts of money from any single individual was both corrupting and gave the appearance of corruption.
Last week, however, in McCutcheon vs. FEC, the Roberts court enacted its own standards for corruption, displacing the legislatively determined standards set in place by McCain-Feingold. It did so without finding new evidence that might have been different than or contradictions of the evidence gathered by Congress. It did so without specifically referring to and rejecting the evidence that the Congress had determined to be controlling. Justice Roberts simply substituted his own judgment, his own imagination, and his own personal opinion, about what is corruption for the considered judgment of the Congress. He said that the only thing that is corruption is a bribe. If there is not a quid pro quo for the money it is not corrupt and it does not even have the appearance of corruption. In effect he said to the Congress go fly a kite if it does not look corruption to me it is not corruption. If the contributor does not leave a bag of money on the Congressperson’s desk and get a vote in return, it is not corruption. If millions are spent to elect a congressperson but there is no specific vote in return it is not corruption and it does not look, to John Roberts in his ivory tower as if it is corruption.
Chief Justice Roberts did this without reciting a single fact that would rebut the Congressional record and did so without the slightest hesitation or self-doubt. Roberts acted as if the court had legislative powers, as if five members of that court could sweep aside months of findings and determinations by the Congress. The first egregious case of this kind was in the 2010 Citizens United decision where the Court again simply discovered that no corruption existed, or would appear to exist, ifcorporations were donors to political campaigns. The Court then, too, ignored one hundred years of legal history and the extensive findings of the Congress. In effect, this court at first in Citizens United and now in McCutcheon has engaged in a usurpation of powers and the leading usurper has been Chief Justice John Roberts.
The unpleasant reality is that the Supreme Court has almost absolute power and this is one of those cases where absolute power corrupts absolutely. Roberts has almost absolute power because as a practical matter no one can hold him accountable. Ruling, therefore, as this Court has done that the legislative branch’s findings of fact are inaccurate, substituting instead the intuitive findings of five Justices for those of the 535 members of Congress, not once, not twice, but over and over, reflects an isolation, and an arrogance bred from that isolation, leading to a self-confidence more characteristic of tyrants than democrats.
That is why it is appropriate to say that Chief Justice John Roberts is not only attempting to deconstruct the New Deal, he is also deconstructing the Constitution. With this series of decisions, Justice John Roberts has, in effect, evaded and substantially destroyed the constitutional separation of powers.