Courts V. Citizens: Our Increasingly Right-Wing Judiciary Has Taken Aim at the Basic Underpinnings of Democracy. (Court Packing)

By Raskin, Jamin B. | The American Prospect, March 2003 | Go to article overview

Courts V. Citizens: Our Increasingly Right-Wing Judiciary Has Taken Aim at the Basic Underpinnings of Democracy. (Court Packing)


Raskin, Jamin B., The American Prospect


LIBERALS NEED TO THINK OF THE REPUBLICAN PARTY'S spreading control over the federal courts in democratic and not just civil-libertarian terms. Our traditional anxiety is that conservative judges will fail to protect the rights of political minorities from attack by an overzealous majority. But the greater danger today is quite the opposite. The new conservative legal agenda is a zealous project by a political minority to thwart the majority's legislative priorities and to undermine the democratic rights of the people.

The emblematic event of this judicial movement was, of course, the U.S. Supreme Court's 2000 decision in Bush v. Gore. In that spectacular failure of law and logic, five of nine justices--one named to the Court by Richard Nixon, three by Ronald Reagan and one by George Bush Senior--intervened in the first presidential election of the new century, overruling a state supreme court on a matter of state law in order to stop the manual counting of more than 175,000 uncounted ballots in Florida. By ordering this unprecedented judicial disenfranchisement as a remedy for the entirely hypothetical possibility that some ballots might be treated differently in one Florida county than another, the justices effectively anointed the loser of the national popular vote as the winner of the 2000 election.

Judge Richard Posner, Bush v. Gore's most able defender, cheerfully concedes that the decision's central legal analysis was specious. He argues that the outcome was justified not by anything so banal as the text or meaning of the Constitution but by virtue of the fact that something just had to be done. And the Court could do it so much more swiftly than the messy political branches that actually had the constitutional authority to resolve the issue. Judge Posner did not seem surprised to find tucked into the Court's opinion a proclamation that the American people have "no federal constitutional right to vote."

But we shouldn't be surprised, either. The victory in Bush v. Gore of result-oriented power politics over quaint ideas about formal constitutional democracy was no fluke. The Rehnquist Court has been engaged in a long and sweeping campaign to invalidate any progressive legislative outputs of the American political process and to sharply limit popular inputs.

As discussed elsewhere in this issue, the five-justice conservative majority has struck down dozens of laws passed by Congress, chiefly those expanding the rights of citizens or the reach of regulatory agencies--often upbraiding Congress along the way for its insolence in enacting them. Whatever you think of the merits of this or that case, the velocity and ferocity of those overrulings refute any claim that "judicial restraint" is the hallmark of conservative jurisprudence.

But the assault on legislation that expresses the popular will isn't the half of it. Far more corrosively, the Rehnquist Court has interfered with the formation of the democratic will in the first place. Indeed, it has left the marks of its right-wing partisanship and nostalgic racial prejudices all over our political institutions and practices.

CONSIDER AN EXEMPLARY LINE OF CASES: THE COURT'S decade-long interference with legislative redistricting. In the 1993 Shaw v. Reno case, the Court upheld a stupefying claim brought by Robinson O. Everett, a conservative constitutional law professor at Duke University, and other aggrieved white voters in North Carolina. They complained that they found themselves drawn into a "bizarre looking" and predominantly black congressional district, one of two the North Carolina legislature had created out of the 12 new districts to which the state was entitled in 1992. These two districts elected the first African American members of Congress from the state since Reconstruction: Mel Watt and Eva Clayton, who also became the first woman to reach Congress from North Carolina, a watershed event on Jesse Helms' home turf. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Courts V. Citizens: Our Increasingly Right-Wing Judiciary Has Taken Aim at the Basic Underpinnings of Democracy. (Court Packing)
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.