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Friday, July 1, 2011

Partisan Political Ideology in the U.S. Supreme Court

Observing a pattern of sustained ideological proclivities in the decisions of justices of the U.S. Supreme Court, The New York Times editorializes that the “court cannot maintain its legitimacy as guardian of the rule of law when justices behave like politicians.” One could just as easily say “behave like human beings,” for juridical interpretation itself contains ample space for an interpreter’s ideology to have a role, given human nature. In other words, ideology may be part and parcel of the essential function of a constitutional court. Rather than being a technical application of a constitution to a matter of law, constitutional interpretation may be one of many ways of pushing for one’s view of the optimal government and society. Among the implications, the arrangement wherein a constitutional court is the final decider of the constitutionality of law, short of a constitutional amendment, may be untenable to the extent that it enables the ideologies of a few unelected citizens qua justices to rule, in effect.

The editorial in The New York Times displays a tendency to skirt the basis of the problem. For example, the editorial castigates justices who have attended political events in violation of the ethics code that applies to the rest of the federal judiciary. Such conduct compromises the appearance of being impartial and independent. This appearance in turn is based on the presupposition that the judiciary is not a political branch. Justice Ginsburg, for example, makes this assumption explicit in pointing to its tenuousness: “What I care most about I think most of my colleagues do, too, is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government” (Biskupic, p. A1).

I contend that not considering the U.S. Supreme Court as involving political ideology is to ignore the space for ideology allowed in constitutional interpretation. No human being is impartial internally concerning matters of government and society. Beyond the reach of ethics codes, the space allowed by interpretation is naturally to be filled not only by “pure reason,” but also by ideology informed by one’s values and beliefs concerning the good society and ideal governance.

In the Court’s 2010-2011 term, ten of the sixteen 5-4 decisions were split along the familiar ideological grounds, according to the Times. The conservative majority showed “contempt for laws that provide some balance to the unlimited amounts of money flooding the political system,” “made it much harder for private lawsuits to succeed against mutual fund malefactors, even when they have admitted to lying and cheating,” made it more difficult for citizens to hold prosecutors accountable, and struck at consumer (ATT) and labor (Wal-Mart) rights. The similarity between this judicial conservative majority and the political right makes these rulings particularly suspect. Were the Court’s “conservative” majority conservative in a distinctly judicial sense distinct from the planks of political conservatives, the role of the judicial ideology would not be as harmful or baleful to the republic. The fear, in other words, is that politically partisan agendas operate through judicial decisions of the Court via the discretion involved in judicial interpretation. Conservatives had a sense of this from the Warren Court just as liberals suspect the influence of politically conservative ideology in the Rehnquist and Roberts Courts. Neither conservatives nor liberals go far enough, however, in recognizing that constitutional interpretation itself allows for ideology.

The Times points to the superficial distinction that informs the design of the U.S. Supreme Court. “The framers of the Constitution envisioned law as having authority apart from politics. They gave justices life tenure so they would be free to upset the powerful and have no need to cultivate political support.” However, the source of the political ideology is less due to political support and more a function of a justice’s own ideology. This is why an ethics code ought not be relied upon to eviscerate the interlarding of partisan politics in the Court. The justices are human, all too human, just like the rest of us. Perhaps we ought not assume otherwise.

The editorial touches on the inevitability of partisan ideology in the Court in the following passage: “Constitutional law is political because it results from choices rooted in fundamental social concepts like liberty and property. When the court deals with social policy decisions, the law it shapes is inescapably political — which is why decisions split along ideological lines are so easily dismissed as partisan.” Being “dismissed” as partisan might be too loose; the decisions cannot but contain a partisan element, given human nature and the space in interpretation.

Rather than expecting the justices not to be human or assuming that an ethics code would do the trick, we could admit to the inevitability of political ideology in judicial interpretation. If the ideologies of five to nine citizens who serve on the U.S. Supreme Court ought not be definitive, judicial review ought not be the final decider short of constitutional amendment. A supermajority in the U.S. House and U.S. Senate, or a supermajority of the state legislatures, could be given the authority to overturn a decision of the U.S. Supreme Court. I would suggest that both Congress and the state governments could act thusly to have the final say short of undergoing the constitutional amendment process. All branches of all governments in the United States are duty-bound, after all, to consider the constitutionality of their respective laws. Constitutional interpretation is an exercise not devoid of political ideology, as one’s values and beliefs cannot but come into play.


Sources:

The New York Times, “Ethics, Politics and the Law,” Editorial, July 1, 2011, p. A22.

Joan Biskupic, “Justice Ginsburg Wields Greater Sway on High Court,” USA Today, July 1-4, 2011.


Thursday, June 30, 2011

Charismatic Leadership: A Reply

I am particularly taken by the following passage from Edith Luc’s essay on charismatic leadership: “(I)t is risky, almost utopist to wait on manifestations of a charismatic leader believed to be of unique and exceptional nature, and able to mobilize everybody at the same time.” I am reminded of the emphasis that American corporations place on the CEO position and the U.S. Government places on the U.S. President. The focus on one person, rather than a council, presumes that certain individuals are so unique and exceptional that perhaps even human nature itself is surmounted. In other words, the theory behind charismatic leadership may imply such extraordinary differences within human nature that some people are essentially super-human, and thus subject to hero-worship.

The full essay is at "Charismatic Leadership: A Reply."


Source:

Charismatic Leadership: Between Fact and Fiction

A Guest Post by Edith Luc, Ph.D.

A remark I often hear about leadership is that true leaders are inevitably charismatic. I am often bewildered such remarks, because they insinuate two misconceptions: first of all, that leadership is limited to extraordinary people, and that the group leader is entirely responsible for mobilizing his/her group around a common vision.

The full essay is at "Charismatic Leadership."


Wednesday, June 29, 2011

The Right in Europe and America: Tale of Two Cities

The far right in Europe is quite different from the right wing in American politics. Putting aside the usual caricature of “people in pointy hoods and the Ku Klux Klan,” Marine Le Pen says she still believes “the American right is much more to the right than the National Front.” She might agree with those who want to manage American frontiers more effectively and prevent massive illegal immigration, but she’s also a big believer in the state’s ability and obligation to help its people. “We feel the state should have the means to intervene,” she says. “We are very attached to public services à la française as a way to limit the inequalities among regions and among the French,” including “access for all to the same level of health care.”

The American right is more far-right than is the European right wing in terms of government providing a survival net, but perhaps not in terms of immigration and other issues. In terms of government services, it is particularly striking that the European right advocates universal health-care. To the American right, even a “public option” is odious socialism. Moreover, the wealthy “I don’t want to help others with my tax dollars—just defense” rationale for keeping their money does not seem to get much political traction in the European right.

In terms of federalism, the “euroskeptics” are much more skeptical of the E.U. than the state rights advocates in America have been of the U.S. Whereas many euroskeptics would break up the E.U. if they could, the states’ rights movement through American history has merely sought to shift the balance of power from the federal government to the state governments. In other words, in terms of federalism the European right is more to the right than is the American right.

Immigration is another policy area in which the European right is further right. Sarkozy’s attempt to send the Roma out of state makes Jan Brewer’s legislation allowing the police to verify the citizenship of people already involved in a police action seem down-right moderate. Whereas in the spring of 2011 the Danish government considered putting up border guards to keep African immigrants out, the Arizona government did not add border guards of its own in 2010. Of course, European federalism is more balanced than is American federalism, but the European right is almost certainly more strident in its efforts to keep undesirable peoples out of the E.U. Even within the E.U., some establishments in the Flanders region of Belgium have signs indicating “No Walloons Allowed”—similar to “No Blacks Allowed” in Alabama until the 1970s.

Perhaps it could be said that whereas culturally and in terms of federalism the European right is more to the right, the European value of solidarity moderates the European right appreciably—even beyond “liberal Democrat” in American politics. Accordingly, caution should be exercised when comparing seemingly-parallel parties in American and European politics. The two unions have rather distinct politics even as “right” and “left” apply to both.


Source:

Tracy McNicoll and Christopher Dickey, “What a Tea Party Looks Like in Europe,” Newsweek, September 6, 2010.

Monday, June 27, 2011

Obama's Economic Stimulus: Insufficiently Focused

The $800 billion stimulus law had as much (or more) to do with improving the education system and rail lines, installing universal broadband, and modernizing electrical grids as reducing the unemployment rate. Consequently, the best that can be said regarding the spending is that it probably played a role in keeping unemployment from getting even worse than it did. 

As an alternative, Barak Obama could have proposed something akin to Roosevelt’s Civilian Conservation Corps (CCC), which was a public work relief program for unemployed men between the ages of 18 and 24; the program ran from 1933 to 1942. The corps was primarily geared to providing work (and a pay check) to unemployed youth. The conservation and development of natural resources in rural areas of the U.S. was merely the application. The CCC was the most popular New Deal program among the general public, providing jobs for 3 million from families on relief.

Essentially, had providing an on-going paycheck to those on or off unemployment compensation been Obama’s priority, the president would have sought more labor-intensive uses for the $800 billion. A new CCC for men and women over 18 could have operated in many towns and cities throughout the U.S. In keeping with the enumerated powers in American federalism, the federal government could have made the funds available for states to use (or not use) as they saw fit.  Job retraining oriented to vocational areas least over-supplied could have gone along with the program.

In short, the $800 billion could have been more focused on the immediate problem of unemployment.  This would not have hurt Obama’s prospects for getting re-elected. I am not surprised that the republicans are able to portray the stimulus spending as ineffective with respect to jobs, though to ignore the unemployment problem or argue that a tax cut would somehow prompt companies to hire seems naïve at best.

Please add a question or comment on the New Deal versus Obama’s stimulus program.

Source:

Matt Bai, “Crisis Past, Obama May Have Missed a Chance,” The New York Times, September 8, 2010.

When Platitudes Undermine Proposals

Barak Obama’s 2010 speech at the UN’s annual opening lacked tangible proposals.  For example, he urged progress on the Middle East peace talks, but proffered no proposal.  He said Africa could be prosperous agriculturally, but gave no proposal for how.  He claimed that corruption in governments of developing countries is a problem, but offered no solution.  Pointing to corruption in general diffuses responsibility so talking about it does not shame anyone into making hard choices. 

The president could have urged African leaders to cede more governmental sovereignty to the African Union, which in turn could act as a check on government corruption at the state level.  Also, he could have proposed a loose federal confederation for the Middle East, which would mitigate the middle east conflict. Finally, he could have gone beyond citing his efforts to reduce the risk of nuclear proliferation to announce that the U.S. would join the ten countries that have created a movement with the goal of eliminating nuclear weapons completely. Meeting on the sidelines of the UN General Assembly in New York, the ten countries launched the new initiative to work towards a world without nuclear weapons. Foreign ministers, led by Japan and Australia, hoped to bring new life to efforts for nonproliferation and disarmament. Their mission statement said: “The only guarantee against the use and threat of nuclear weapons is their total elimination.” This would indeed be real change.  In contrast, Obama said only that his goal is securing loose nuclear material around the world in four years. 

In short, real change goes beyond politics as usual and platitudes. It goes beyond incrementalism to proffer systemic change. Sadly, being tied to the vested (i.e., wealthy) interests of the status quo severely delimits the range of policy prescribed. That is to say, refusing the challenge the status quo closes restricts one’s ability to lead.


See:

Catherine Bolsover, “Germany Joins New International Initiative for Nuclear Disarmament,” Deutsche Welle, September 23, 2010.