Academic journal article Harvard Law Review

The Supreme Court 2011 Term: Foreword: Democracy and Disdain

Academic journal article Harvard Law Review

The Supreme Court 2011 Term: Foreword: Democracy and Disdain

Article excerpt

THE SUPREME COURT 2011 TERM

FOREWORD:

DEMOCRACY AND DISDAIN

Pamela S. Karlan

CONTENTS

I.    THE VERY WORLD OF ALL OF US: THE REVOLUTION OF

      THE WARREN COURT

      A.Democracy and the Electoral Process.

      B.Trusting Congress

      C.The Democratization of Constitutional Enforcement.

II.   AS ON A DARKLING PLAIN: THE COUNTERREVOLUTION OF THE

      ROBERTS COURT

      A.Protecting Spenders and Suspecting Voters: The
      Roberts Court and the Political Process.

      B. Suspecting Congress

      C.Undermining Enforcement

III.  SHINE, PERISHING REPUBLIC.

Sometimes the Justices seem barely able to hide their disdain for the other branches of government. Take the oral argument three Terms ago in Northwest Austin Municipal Utility District No. One v. Holder. Justice Scalia pointed to the overwhelming congressional vote in favor of amending and extending section 5 of the Voting Rights Act of 1965--the "crown jewel" of the Second Reconstruction--as a reason not for deference, but for suspicion:

  JUSTICE SCALIA: ... What was the vote on this 2006 extension
 --98 to nothing in the Senate, and what was it in the House?
  Was --

  MR. ADEGBILE: It was--it was 33 to 390, I believe.

  JUSTICE SCALIA: 33 to 390. You know, the--the Israeli Supreme
  Court, the Sanhedrin, used to have a rule that if the death
  penalty was pronounced unanimously, it was invalid, because
  there must be something wrong there. (1)

In this Term's argument in Arizona v. United States, (2) an important immigration case, Chief Justice Roberts cut off Solicitor General Donald B. Verrilli Jr. before Verrilli was able to utter a complete sentence. (3) And during argument in National Federation of Independent Business v. Sebelius (4) (NFIB), Justice Kennedy speculated that when the political branches take a step beyond what the Court's existing cases "have allowed," the presumption of constitutionality disappears, to be replaced by "a heavy burden of justification to show authorization under the Constitution." (5) The Justices are becoming umpires in the tradition of Bill Klem, who when asked whether a particular pitch was a ball or a strike, replied that "It ain't nothin' till I call it." (6)

It was not always so. The opening day of the marathon oral argument in the Affordable Care Act (7) cases--surely the defining decision for the Roberts Court so far--happened to be the fiftieth anniversary of what Chief Justice Warren called "the most important case" of his "tenure on the Court" (8): Baker v. Carr. (9) Why Baker, and not Brown v. Board of Education (10) or Miranda (11) or Gideon (12) or New York Times Co. v. Sullivan? (13) Well, because Baker set in motion the reapportionment revolution--a centerpiece of the Warren Court's "participation-oriented, representation-reinforcing approach to judicial review." (14) The animating impulse behind many of the Warren Court's major decisions was a commitment to civic inclusion and democratic decisionmaking. This impulse is captured not only by the Reapportionment Cases themselves, where the Court focused on equality in voting and problems of minority entrenchment, (15) but also by the way the Court tied public education to civic participation in Brown (16)and treated the landmark legislation of the Second Reconstruction as an important tool in realizing constitutional values. (17)

The Warren Court understood the problems and the promises of politics from its own experience. The Court numbered among its members former senators, representatives, and state legislators, a former governor and a former mayor, and former cabinet members. (18) Earl Warren himself was a politician of a kind we can scarcely imagine today. Elected Governor of California as a Republican in 1942, (19) he proposed that California become the first state "to create and support a system of compulsory health insurance." (20) Although the proposal was defeated by one vote in the Assembly, (21) his health care agenda, among other things, garnered Warren such widespread admiration that when he ran for reelection in 1946, he won both the Republican and Democratic primaries. …

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