Disdain All Around
Will, George F, Tribune-Review/Pittsburgh Tribune-Review
While accusing the Supreme Court's conservative justices of "disdain for democracy," Pamela S. Karlan proves herself talented at dispensing disdain.
The Stanford law professor is, however, less talented at her chosen task of presenting a coherent understanding of judicial review.
Still, her "Democracy and Disdain" in the November Harvard Law Review usefully illustrates progressivism's consistent disdain for the Founders' project of limiting government.
The primary focus of her displeasure is, remarkably, Chief Justice John Roberts' opinion mostly upholding ObamaCare. But she begins by being appalled at Justice Antonin Scalia's suggestion that the lopsided majorities by which Congress in 2006 extended Section 5 of the 1965 Voting Rights Act were "a reason not for deference, but for suspicion."
That section requires some Southern states and other jurisdictions to seek Justice Department permission to make even minor changes in voting procedures. This was a justifiable infringement of federalism in 1965. But in 2006, when blacks were registering and voting at higher rates than whites in some covered states, Congress extended the act until 2031 using voting information from 1972.
Surely Scalia was correct that Congress, indifferent to evidence, continued to sacrifice federalism merely to make a political gesture. The Roberts court was excessively deferential in not overturning Section 5 in a 2009 case, when it merely urged Congress to reconsider the section.
It is the court's health care decision that Karlan thinks especially reveals "disrespect for, and exasperation with, Congress." Even though Roberts upheld the crucial provision -- the mandate -- he did so with what Karlan considers a faulty attitude. His opinion was "grudging" in finding that, although Congress flinched from calling the mandate a tax, the law could be saved by calling it this.
Karlan is very difficult to please. Roberts rescued Congress' handiwork from Congress' clumsy legislative craftsmanship, and still she complains because in doing so Roberts inevitably made "a thinly veiled critique of Congress. …