Tuesday, June 12, 2012

Florida debates 'Stand Your Ground' law

LONGWOOD, Fla. – Should Florida amend or eliminate its controversial "Stand Your Ground" law?
Nineteen members of a state commission are meeting Tuesday to discuss the issue – just a short distance from where 17-year-old Trayvon Martin was shot and killed by 28-year-old George Zimmerman.
It's believed Zimmerman’s defense attorney will rely of Florida’s controversial law to prove he did no wrong that February evening in Sanford.
Trayvon Martin’s mother, Sabrina Fulton, is among those arguing Florida’s law should be changed. But she's also made it a point to try to calm proponents of the Second Amendment, which protects the right of people to keep and bear arms, who feel any change to the law is an attack on their rights.

"I grew up with a weapon in my house. My dad was a police officer. I have nothing against guns,” Fulton said on Tuesday.
She was among a group who presented the state commission with more than 300,000 signatures demanding the law be repealed.
"I have nothing against the law,” she said.  “It's how it's applied."
The Florida law was passed in 2005 and was signed into law by then-Gov. Jeb Bush. The law came into being in the wake of Hurricane Ivan – partly because of the case of James Workman.
Workman, a 77-year-old retiree at the time, and his wife, Kathryn, had survived Hurricane Ivan, but their house in Pensacola was badly damaged, so they were staying in a trailer nearby. In the middle of the night, a FEMA worker from North Carolina, Rodney Cox, mysteriously appeared in their RV. Workman shot and killed the intruder.
After months in legal limbo, no charges were filed against Workman. Lawmakers seized on his case as they pressed for the country’s first Stand Your Ground law.

Workman, now 84, recently spoke to NBC News from his home in Pensacola and defended the controversial law.
"The law may not be perfect; I’m not saying it’s perfect.  But it’s a whole lot better than not having a law,” said Workman. "You got to have some way of protecting yourself.  I mean, I just – I don’t see anything wrong with that, at all."

The commission will not affect a change to the law, but it plans to offer the results of its six statewide meetings to Florida Gov. Rick Scott and the state Legislature.
If the law were to be amended or revoked, it would not be until 2013, when the Legislature returns for its lawmaking session.

With before-death notes, China activists attempt to preempt being 'suicided'

Tyrone Siu / Reuters
Thousands of protesters hold banners as they march along a street, to protest and urge the Chinese authorities to carry out a proper investigation into the death of dissident Li Wangyang, in Hong Kong on June 10.

BEIJING – “I will not commit suicide” has become a new mantra among China’s human rights activists.
They are responding half-mockingly and half-seriously to fears that they could be “suicided” by the Chinese government for their activism.
The movement comes in response to the suspicious death of Li Wangyang, a Chinese dissident jailed after the 1989 crackdown on pro-democracy protesters. Li, 61, was found dead in a hospital ward on June 6 under what his family says were suspicious circumstances, just two days after the 23rd anniversary of the Tiananmen Square crackdown. He had served over 20 years in Chinese prison for his activism.
Hu Jia, a high-profile HIV/AIDS activist who served three and a half years in prison for the same crime Li was jailed for, “subversion of state power,” recently tweeted about the need to counter any foul play by the government.
Tiananmen activist found dead under suspicious circumstances
“It looks like I should leave a notarized document with my lawyer, saying: ‘Citizen Hu Jia will never commit suicide at any time, because of anyone, in any situation, or for anything,’” Hu tweeted. “If you are a dissident, activist or political prisoner constantly detained by secret police, I suggest you make a declaration or notarize such a document. This country does not lack people who were “suicided.’”
Wu Gan, another outspoken dissident known by the nickname “super vulgar butcher” on China’s blogosphere, also tried to pre-empt any future suicide claims by the government for his activism. “Here’s my announcement,” he wrote on Weibo, China’s most popular Twitter-like service. “I’m healthy (apart from fatty liver disease), optimistic, and have a lot of hope in the future. I wait for the day when the sky clears up and they are brought to justice. I will absolutely never commit suicide.”
The movement didn’t take long to reach Twitter, where a "#Iwillnotcommitsuicide” hash tag was created on June 8, just two days after Li’s mysterious death, and has been widely re-tweeted over the last three days.
Philippe Lopez / AFP - Getty Images
People take part in a protest for the cause of late Chinese dissident Li Wangyang in Hong Kong on June 10.

Another activist, Liu Ping, from the southern province of Jiangxi, wrote on her Weibo account:  “I solemnly declare, if I’m caught (by police) I will never commit suicide!”
Wang Lihong, a former Beijing businesswoman, jailed for eight months for her activism, expanded on the theme on her Twitter account. “I, Wang Lihong, once tried to kill myself in prison. It wasn’t because I was weak. I was only defending my dignity. But I will never do that again, no matter how you lure, ask, or even force – I will not commit suicide, unless you do it.”
Li’s body was found in the Daxiang District Hospital in Shaoyang, Hunan Province, where he was receiving treatment for long-term ailments related to the more than 20 years he spent in prison. He had been released on May 5, 2011.
But he may have grown too confident in his new-found freedom. On June 4, the 23rd anniversary of the Tiananmen Square crackdown,  i-CABLE, a Hong Kong based news channel, broadcast an interview with Li in which he was extremely outspoken in his description of his torture during his time in prison.
Two days after the interview, he was found dead in his hospital room.
According to the local government in Shaoyang, Li’s body was cremated on the morning of June 9 with his relatives’ consent. They also said an autopsy was conducted by four legal and forensic experts the day before, which was witnessed and filmed by local congressional representatives and journalists.
NBC News could not verify the reports with Li’s sister or her husband because their cell phones remained off on Monday. 

China’s Crisis

by April 30, 2012

This was to be a year of tidy political theatre for the Chinese Communist Party, capped by the scripted handoff of power from nine senior apparatchiks to a new generation. One day this fall, the incoming cast would stride across the stage of the Great Hall of the People, politely clapping for one another, in front of a sixty-foot painting of the Great Wall.
But the plot began to unravel on February 6th, when a frantic Party official named Wang Lijun, a former chief of police—once hailed in the press for perfecting the transplanting of organs from executed prisoners—fled by car from his city, Chongqing, to the United States consulate in Chengdu. As Chinese security forces gathered outside the consulate, demanding that he come out, Wang sought political asylum. He told the Americans that he had uncovered the murder of a British businessman in Chongqing named Neil Heywood, a forty-one-year-old man of pale linen suits and a guarded manner, a “character in a Graham Greene novel—always immaculate, very noble, very erudite,” as a friend of Heywood’s recalled in the Daily Telegraph. Heywood had worked part time for a corporate intelligence firm founded by former M.I.6 officers, and he drove a Jaguar with the license plate 007, but friends considered him more Walter Mitty than James Bond. His body was discovered last November, in a shabby room in a mountaintop hotel. Police initially ascribed the death to alcohol, but Wang concluded that Heywood had been poisoned, and put the blame on the family of Bo Xilai—his boss—the sixty-two-year-old Party Secretary of Chongqing, who was, until that instant, a leading contender to mount the stage this fall at the Great Hall of the People. (Wang was not granted asylum, and disappeared into Chinese custody.)
On April 10th, the government suspended Bo from the Politburo, amid an investigation of “serious discipline violations.” Although the violations weren’t specified, Bo had alienated Party leaders by reviving Maoism in Chongqing, marshalling its citizens into “Red Song” renditions of “Unity Is Power” and “Revolutionaries Are Forever Young.” With the help of Wang, his eventual betrayer, he had rounded up thousands of lawyers, tycoons, and alleged criminals, in a campaign of arrests and torture that he called Smash Black.
The government also detained Bo’s wife, the glamorous lawyer Gu Kailai—“the Jackie Kennedy of China,” as one American colleague called her—on suspicion of involvement in Heywood’s murder. The motive? Among the theories, Reuters cited sources who say that Gu asked Heywood “to move a large sum of money abroad,” and she “became outraged when he demanded a larger cut.” Heywood, it seems, had helped the family for years, as a foreign “fixer,” massaging its encounters with an unfamiliar new world. He told friends that he had helped Bo’s son, Guagua, get into Harrow, for a proper English education. The young man went on to Balliol College, Oxford, where he appeared in boozy party photos that circulated online. At the time of his parents’ detention, he was at Harvard’s Kennedy School of Government. In Cambridge, he drove a Porsche; in Beijing, he drove a red Ferrari.
The tale reads like a primer on the rise of Chinese oligarchs, but it is so baroque in its particulars that its closest precedent is in fiction. The Broadway hit “Chinglish,” by David Henry Hwang, centers on a Chinese official who has been arrested on corruption charges, and features a British consultant who arranges for the son of a Party boss to be admitted to an English university. When Hwang’s earlier play “M. Butterfly” opened, in 1988, it captured the shadow of the West over Asia. By the time Hwang was writing “Chinglish,” as he put it recently in Newsweek, the roles had reversed, and he set out to capture how “recession-battered Westerners seeking a foothold in booming China must assimilate to its customs and ways of doing business.”
In that respect, the Bo case may dampen Western analysts’ infatuation with Chinese state capitalism. The gap between rich and poor has become so inflammatory and unsustainable that the Chinese government has simply stopped releasing an official measure of the distribution of wealth. (Unofficial studies now put China’s inequality beyond the point that a former Prime Minister once estimated would trigger social unrest.) Bo Xilai made his name channelling Mao’s call for social equity, but Bloomberg has discovered that Gu Kailai’s siblings control businesses worth at least a hundred and twenty-six million dollars. The Chinese journalist Jiang Weiping, who spent five years in prison for reporting on Bo family corruption, told NPR last week, “I think it’s an extremely conservative guess to say he had one hundred mistresses.”
And yet Bo Xilai’s most vexing legacy for the Party may be not that he was hated but, rather, that he was loved. His élite peers came to despise him for his Western-style grandstanding, his family’s indiscretion, and his homage to the Cultural Revolution. But disenfranchised citizens hearkened to his rhetoric on behalf of the poor and to his investments in public housing. His exposure threatened the Party’s legitimacy.
The Bo situation has been compared to the Tiananmen Square crisis. As in 1989, it unfolds, to some degree, amid a contest of ideas about China’s economic future, pitting Bo’s determination to fortify state-owned enterprises and state investment against the resolve of those who see the need for change. But Bo did not fall because of his ideas; he fell because of his use of money and force and fear.
In surgically removing Bo from Chinese politics, the Party was humiliated but also, one senses, energized. After Bo’s dismissal, China’s cabinet, in the name of reducing corruption, ordered ministries and local governments to disclose more detail on public spending and affordable-housing construction. Optimists inside and outside the country have begun discussing the transformative potential of unexpected events. Cheng Li, of the Brookings Institution, believes that the Bo Xilai case will be “a curse if the Party pretends that its rule can remain as before, but a blessing if the Party decides to transform itself.”
The cost of transformation, however, would be measured in power—the interests threatened by curtailing corruption, the money that must be siphoned away in order to balance the economy, the privileges that would vanish in the glare of transparency. For now, the streets are quiet, because one thing that all factions of the Party agree on is that they could lose everything if the Bo Xilai case opens a wider schism. But do they recognize the longer-term problem: that their refusal to share the affairs of state with their own people is the greatest peril of all? 

US braces for Mexican shift in drug war focus

Front-runner in race for presidency suggests that Mexico should not 'subordinate to the strategies of other countries'

Image: Methamphetamine ingredients in Mexico

Bruno Gonzalez  /  AP
A soldier stands in a room full of barrels containing white and yellow powder after a raid at a small ranch in Tlajomulco de Zuniga, on the outskirts of Guadalajara, Mexico, on Feb. 9. According to the Mexican army, 15 tons of pure methamphetamine were seized at the ranch, an amount equivalent to half of all meth seizures worldwide in 2009.
updated 6/11/2012 3:35:29 AM ET
The top three contenders for Mexico’s presidency have all promised a major shift in the country’s drug war strategy, placing a higher priority on reducing the violence in Mexico than on using arrests and seizures to block the flow of drugs to the United States.

 Violence, including the discovery of 49 mutilated bodies near the U.S. border, is reaching new levels in the ongoing drug war in Mexico. NBC’s Mark Potter reports.
The candidates, while vowing to continue to fight drug trafficking, say they intend to eventually withdraw the Mexican Army from the drug fight. They are concerned that it has proved unfit for police work and has contributed to the high death toll, which has exceeded 50,000 since the departing president, Felipe Calderón, made the military a cornerstone of his battle against drug traffickers more than five years ago.
The front-runner, Enrique Peña Nieto, does not emphasize stopping drug shipments or capturing drug kingpins as he enters the final weeks of campaigning for the July 1 election. Lately he has suggested that while Mexico should continue to work with the United States government against organized crime, it should not “subordinate to the strategies of other countries.”
“The task of the state, what should be its priority from my point of view, and what I have called for in this campaign, is to reduce the levels of violence,” he said in an interview.
Mexico's drug war: No sign of 'light at the end of the tunnel'
United States officials have been careful not to publicly weigh in on the race or the prospect of a changed strategy, for fear of being accused of meddling. One senior Obama administration official said on Friday that Mr. Peña Nieto’s demand that the United States respect Mexican priorities “is a sound bite he is using for obvious political purposes.” In private meetings, the official said, “what we basically get is that he fully appreciates and understands that if/when he wins, he is going to keep working with us.”
Still, the potential shift, reflecting the thinking of a growing number of crime researchers, has raised concern among some American policy makers. “Will there be a situation where the next president just turns a blind eye to the cartels, ceding Mexico to the cartels, or will they be a willing partner with the United States to combat them?” Representative Ben Quayle, an Arizona Republican, asked at a hearing this month in Phoenix. “I hope it’s the latter.”
Video: 'No end to this war' 
Jorge Castaneda, former Mexican foreign minister and NBC News Latin America policy expert, talks about the latest developments in Mexico's drug war where this week 49 mutilated bodies were found near the U.S. border.

The two other principal candidates, Andrés Manuel López Obrador, who narrowly lost the race in 2006 and is gaining in polls, and Josefina Vázquez Mota of the incumbent National Action Party, have joined Mr. Peña Nieto in promising to make it their priority to reduce the body count, which has spiraled out of control during Mr. Calderón’s six-year tenure.
“Results will be measured not by how many criminals are captured, but by how stable and secure the communities are,” Ms. Vázquez Mota wrote on her campaign Web site.
Calif. faces threat at sea from drug smugglers
Mr. López Obrador — whose security strategy is called “Abrazos, no balazos,” or “Hugs, not bullets” — has criticized how United States officials have approached securing Mexico. “They should send us cheap credit, not military helicopters,” he said.
Mr. Calderón, who is constitutionally limited to one term, used the army more aggressively in fighting drugs than any previous Mexican leader, overshadowing his attempts to improve Mexican institutions. All three candidates vow on the stump to devote more attention to programs that address the social inequality that leads young people to join criminal groups.

Image: Federal police officer at crime scene on Mexico highway
Christian Palma  /  AP
A federal police officer guards the area where dozens of bodies, some of them mutilated, were found on a highway connecting Monterrey, Mexico, to the U.S. border on May 13.

The candidates promise to continue fortifying the federal police, and Mr. Peña Nieto has called for adding a “gendarmerie” paramilitary unit for the most violent, rural areas where policing is especially lacking. But they eschew Mr. Calderón’s talk of dismantling the cartels and promising big seizures, and only when pressed in an interview did Mr. Peña Nieto suggest that capturing the most-wanted kingpin, Joaquín Guzmán, known as El Chapo, would be a goal.
As the candidate of the Institutional Revolutionary Party, or the PRI, Mr. Peña Nieto is the source of much of the American worry. The PRI ran Mexico for 71 years, until 2000, with authoritarianism, corruption and, critics say, a wink and nod to drug traffickers. Indeed, Mr. Peña Nieto’s comfortable lead in the polls has shrunk after opponents warned, among other charges, that he and his party would make deals with the cartels for peace.
Mexico's Zetas cartel rewrites drug war in blood
Mr. Peña Nieto, 45, insisted in an interview that he was a fresh face representing a new democratic era for the party — going as far as to say he has never tried any illicit drug. But he nevertheless defended the PRI, saying the other parties have had their share of bad apples and suggesting that the return of the party would be another sign of Mexico’s maturing democracy.

Image: Enrique Pena Nieto
Eduardo Verdugo  /  AP
Presidential candidate Enrique Pena Nieto greets supporters at a campaign rally in Valle de Chalco, Mexico, on Thursday. Mexico will hold presidential elections on July 1.

“I come from a party with a great history,” he said. “It is singled out more for its mistakes and errors than its achievements,” like poverty reduction and social programs.
Mexican analysts say the candidates are responding to growing public frustration with the current antidrug approach. Mr. Calderón has long portrayed the violence, much of it cartel infighting, as a sign that traffickers are on their heels, an idea that has lost resonance with the public.
Mexican presidential candidate becomes poster boy for infidelity
Although drug consumption is rising in Mexico, drug production and trafficking are seen primarily as American problems that matter less than the crime they spawn. “You go ask the majority of people about a drug lab in the city, they are going to say, ‘As long as they don’t kill or rob me, it doesn’t matter,’ ” said Jorge Chabat, a foreign-affairs professor at CIDE, a research institution here.
To shift the drug war toward combating violence, the next president faces a costly and exceedingly difficult job of cleansing and rebuilding poorly trained police agencies and judicial institutions rife with corruption, a job Mr. Calderón began.
Cross-border meth trade booms amid Mexico's war on drugs


Drug smugglers are now moving their product across the ocean in the dark of night, coming ashore in Southern California, and showing no signs of backing down. NBC’s Mark Potter reports.
The focus on arresting top traffickers and extraditing them to the United States has weakened several organizations, the Mexican and American authorities have insisted, but the bloodshed caused by newly emergent and splintering groups has overwhelmed the local and state authorities and left the impression that the antidrug forces are losing ground.
“They can get some of the guys at the top, but now you’ve got all these other guys running around doing whatever they want, and the state and local police can’t handle it,” said an American official who requested anonymity because of the political sensitivities.
Mexico's ex-deputy defense minister probed over cartel links
American officials said they were still not certain about Mr. Peña Nieto’s commitment to the kinds of changes that would be needed to fight both crime and drugs.
His message of a new PRI has been undercut somewhat by near-daily headlines from an investigation of former PRI governors accused of corruption and possible links to organized crime.
Even some of Mr. Peña Nieto’s supporters in Washington, like Representative Henry Cuellar, a Texas Democrat who befriended him last year, acknowledge the questions about the party and whether Mr. Peña Nieto can distance himself from its past.
Mexico leader's message to US: 'No more weapons!'
The new Mexican president will probably face a divided congress, meaning he or she would wield considerably less clout than past leaders did.
“What’s really quite clear is that the presidency is not what it used to be,” said Arturo Valenzuela, a Georgetown University professor and former top State Department official in the region.
Video: Video of kid criminals stirs controversy in Mexico 

A video "mockumentary" that shows children as kidnappers, corrupt cops and drug traffickers sparked a fierce debate in violence-torn Mexico.'s Dara Brown reports.

He added: “If the PRI comes back, it’s not going to be the way the PRI governed before, because the country is just so different. So the question is how will they run the country? They will have to function in a very complicated electoral democracy.”
Karla Zabludovsky and Elisabeth Malkin contributed reporting.
This story, "Candidates in Mexico Signal a New Tack in the Drug War," originally appeared in The New York Times.

Tuesday's campaign round-up

By Steve Benen
Today's installment of campaign-related news items that won't necessarily generate a post of their own, but may be of interest to political observers:
  • It's election day in Arizona's 8th congressional district, home to a special election to fill Gabrielle Giffords' former seat. For Republicans, the race is about blaming President Obama; for Democrats, the race is about the GOP's opposition to Medicare and Social Security.
  • President Obama's re-election campaign released a new ad this morning, once again highlighting Mitt Romney's failures as the one-term governor of Massachusetts. The spot will air in Colorado, Florida, Iowa, North Carolina, New Hampshire, Nevada, Ohio, Pennsylvania, and Virginia.
  • Obama is also launching a series of events in Michigan, intended to remind voters in the state about his rescue of the American auto industry.
  • In Pennsylvania, a new Quinnipiac poll in Pennsylvania shows Obama leading Romney by six points, 46% to 40%.
  • In Arizona's Republican U.S. Senate primary, Rep. Jeff Flake falsely accused his opponent, Wil Cardon, of failing to file income taxes. The Flake campaign has since walked back the claim.
  • In Hawaii's U.S. Senate race, for Gov. Linda Lingle (R) is not only launching television ads, her campaign has also taken over a digital cable channel that will focus exclusively on her Senate bid.
  • And in Nevada, where party operations can be critical to success, Senate Majority Leader Harry Reid is putting his Democratic operation to work in support of Rep. Shelley Berkley's Senate campaign.

Heavy Burden

by April 9, 2012

It’s well known by now that Donald Verrilli, Jr., the Solicitor General, had an off day at the Supreme Court last Tuesday, when he was called on to defend the constitutionality of the individual mandate, the part of the Affordable Care Act which requires people to buy health insurance. Still, it’s worth noting the magnitude of the challenge that he was facing. The key issue in the case is whether Congress, in passing the law, exceeded its powers under the Commerce Clause of the Constitution, which allows the government to regulate interstate commerce. Consider, then, this question, posed to Verrilli by Justice Anthony M. Kennedy: “Assume for the moment that this”—the mandate—“is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?” Every premise of that question was a misperception. The involvement of the federal government in the health-care market is not unprecedented; it dates back nearly fifty years, to the passage of Medicare and Medicaid. The forty million uninsured Americans whose chances for coverage are riding on the outcome of the case are already entered “into commerce,” because others are likely to pay their health-care costs.
Kennedy’s last point, about the “heavy burden” on the government to defend the law, was correct—in 1935. That was when the Supreme Court, in deciding Schechter Poultry Corp. v. United States—a case involving the regulation of the sale of sick chickens—struck down the National Industrial Recovery Act, a principal domestic priority of President Franklin D. Roosevelt, on the ground that it violated the Commerce Clause. Two years later, however, the Court executed its famous “switch in time that saved the Nine” and began upholding the reforms of the New Deal. The Justices came to recognize that national economic problems require national solutions, and they deferred to Congress, usually unanimously, to provide those solutions, under the Commerce Clause.
For example, the Justices had no trouble upholding the Civil Rights Act of 1964, which used the clause to mandate the integration of hotels and restaurants. “It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination,” Justice Tom C. Clark wrote, for his unanimous brethren. “But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed—what means are to be employed—is within the sound and exclusive discretion of the Congress.” In other words, Justice Kennedy had it backward. The “heavy burden” is not on the defenders of the law but on its challengers. Acts of Congress, like the health-care law, are presumed to be constitutional, and it is—or should be—a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government.
Last week, however, the conservative Justices were showing no deference to Congress, especially on economic matters. The questions from the quartet of Kennedy, John G. Roberts, Jr., Antonin Scalia, and Samuel A. Alito, Jr., amounted to a catalogue of complaints about the Affordable Care Act. (Clarence Thomas, their silent ally, presumably was with them in spirit.) In particular, they appeared to regard the law as scandalously cruel to one party in the debate—and it wasn’t the uninsured. The Justices’ own words revealed where their sympathies lie. Roberts: “If you’re an insurance company and you don’t believe that you can give the coverage in the way Congress mandated it without the individual mandate, what type of action do you bring in a court?” Scalia: “That’s going to bankrupt the insurance companies if not the states.” Alito: “What is the difference between guaranteed-issue and community-rating provisions on the one hand and other provisions that increase costs substantially for insurance companies?” Kennedy: “We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.”
In the more than seven decades since the New Deal, the Supreme Court has avoided this sort of line-by-line parsing of the policy choices made by legislators. As the Justices have said repeatedly, the courts should overrule the work of Congress only on the rarest occasions. “Conclusory second-guessing of difficult legislative decisions,” Chief Justice William Rehnquist once observed, “is not an attractive way for federal courts to engage in judicial review.” In recent years, the Justices have intervened in these matters solely to protect the rights of minorities shut out of the legislative process. (Insurance companies, though they are few in number, do not count as a “minority.”) Now, instead, the Supreme Court acts as a sort of supra-legislature, dismissing laws that conflict with its own political agenda. This was most evident in the 2010 case Citizens United v. Federal Election Commission, when the five-Justice majority eviscerated the McCain-Feingold campaign-finance law (not to mention several of its own precedents), because Congress showed insufficiently tender regard for the free-speech rights of corporations. The question now is whether those same five Justices will rewrite—or erase—the health-care law on which Barack Obama has staked his Presidency.
It’s tempting to analyze the case in the context of election-year politics, to game out how Obama might be helped or hurt by the Court’s eventual decision. (Thumbs down on the act discredits the President with moderates—or, maybe, mobilizes his base. Thumbs up, maybe, does the opposite.) But the decision is a great deal more important than its immediate political aftermath. It’s about what the government can do, not just who runs it. If the Court acts in line with the sentiments expressed by the conservatives last week, it could curtail the policymaking options of Congress for a generation. An adverse decision on the Affordable Care Act could even jeopardize the prospects for conservative legislative priorities, like health-insurance vouchers or private retirement accounts in lieu of Social Security. It is simply not the Supreme Court’s business to be making these kinds of judgments. The awesome, and final, powers of the Justices are best exercised sparingly and with restraint. Their normal burdens of interpreting laws are heavy enough. No one expects the Justices to be making health-care policy any more than we expect them to be picking Presidents, which, it may be remembered, is not exactly their strength, either. 

Germany grows weary of being Europe's crutch

John Schoen /
"Everyone is ready to help the big banks. For small people like me there is nothing," Janusz Michalak, a carriage drver in Berlin, says.

BERLIN -- It’s a busy day on the Pariser Platz, except for the carriage drivers who ply their trade taking tourists for rides through Berlin's central park.
While throngs of out-of-towners are having their pictures taken in front of the Brandenberg Gate in the heart of Germany’s capital, business is slow for drivers like Janusz Michalak.
The tourists from Spain, Portugal and Greece, he said, haven’t got five euros to spare for a ride through the Tiergarten. But somehow, he said in disgust, the German government has money to bail out banks in Spain.
“It’s a black hole,” he said, as his horses stood in a line of carriages that weren’t moving. “Everyone is ready to help the big banks. For small people like me there is nothing. But it’s the people’s money.”
Is the global economy at risk, and how can we avoid a financial tsunami? Robert Zoellick, World Bank president, shares his opinions.
For the fourth time since the euro crisis began unwinding three years ago, Germany is playing the lead role and providing critical support for the latest -- and by the far the largest -- European bailout plan. This time, European finance officials have agreed to put up 100 billion euros ($125.1 billion) to backstop Spain’s banks after investors and depositors began fleeing several weeks ago and new sources of funding dried up.
As Europe’s largest -- and still growing -- economy, German support is essential for the latest in a three-year series of stopgap measures to stem the widening debt crisis and deepening recession.
But Germany seems on the verge of catching a bad case of bailout fatigue. Opinion polls are beginning to show waning support from voters and taxpayers for their reluctant role as the defender of the 20-year experiment in monetary union known as the euro. Now, as the common currency is producing increased pressure along multiple economic fault lines in the weaker southern economies, the German people are growing weary.
German newspapers reacted skeptically to the latest stopgap measure to help Spain. The mass-circulation Bild tabloid warned "the Spanish patient will also need more help than a one-off capital injection." The Mitteldeutsche Zeitung called it a costly "sedative" and highbrow Die Welt expressed similar doubts that the Spanish aid would stop the rot in the eurozone, despite a positive initial response in financial markets.
"Politicians are once again showing such great optimism that they are closer to solving the problems that the citizens, most of whom have already become skeptics, are even more suspicious," Die Welt wrote.
After two years of multiple rounds of haggling between Germany and Greece, austerity measures imposed by Berlin as a condition for aid brought down the Athens government that agreed to those terms. The looming Greek elections June 17 have heightened fears that Greek voters will again reject Germany’s terms and leave the monetary union. Opinion polls show voters deadlocked on the issue.
European financial officials and economists generally believe the effects of such a departure, though extremely painful for Greeks, could be manageable for the eurozone at large. But Spain’s banking system, which holds hundreds of billions of euros worth of debt issued by Madrid and other European governments, would create a financial shock an order of magnitude larger than the collapse of Greece.
The scope of the recent aid proposal for Spain, the fourth-largest economy in the 17-country eurozone, has heightened concerns voiced by rank-and-file Germans that the plan may be simply throwing good money after bad. There is no mechanism like the U.S.'s Federal Deposit Insurance Corporation's "resolution" powers, for example, to close down a bleeding bank to stem the losses. The risk is that the aid package simply keeps insolvent “zombie“  banks on indefinite and costly life support.
It’s also far from clear whether 100 million euros will be enough to stop the bleeding from the quiet "run" recently on Spanish banks. According to the latest data available, a record 66 billion euros fled Spanish banks for safer havens in May.
Spain’s banks are coping with two types of deteriorating assets. The first is a flood of mortgages that went bad in a U.S.-style housing bust that still hasn’t run its course.
Spain's banks are also on the hook for a large pile of Spanish government debt that is deteriorating in value daily as investors bail out of Spanish bonds. As their assets have dwindled, the banks, once a major source of funding for the Spanish government, have pulled back. That’s left the government with fewer buyers for its fresh debt.
Fitch Ratings cut long-term credit ratings for two of Spain's largest banks, Banco Santander and Banco Bilbao Vizcaya Argentaria, on Monday amid concerns that Spain's economy, which is in its third year of contraction, will remain in recession until 2013. The country's unemployment rate is 25 percent.
Though Spanish officials have taken pains to insist that the latest bailout is directed toward banks, and not the government itself, many economists say the financial crisis facing the two are inextricably intertwined.
That’s left the government and the country's lenders in a futile effort to prop each other up, Nobel Prize-winning economist Joseph Stiglitz told Reuters.
"The system ... is the Spanish government bails out Spanish banks, and Spanish banks bail out the Spanish government," Stiglitz said.
Initially, at least, stock markets rallied Monday on the announcement late Sunday that the bank bailout deal had been struck. But the euphoria was short-lived because it may have been less a sense of relief that the euro crisis has been averted than a belief that the coming large infusion of cash will spill over into stocks.
The longer-term impact of the deepening recession in southern Europe is already being felt on Germany’s heavily export-driven economy, which has seen a sharp slowdown in industrial production in the past few months as demand weakens from its trading partners, including China.
Now, as Germany’s unwelcome role as Europe’s crutch appears to be expanding once again, some economists here are questioning whether it has the financial resources to successfully “ring fence” weaker economies and continue to maintain its own prosperity.
"If we keep shifting the capital abroad, than there is less capital to invest at home," said Steffen Henzel, an economist with the IFO Institute in Munich.
Gemany’s reluctance to fund the continent's financial fire brigade is also deeply rooted in the flawed compact that created a common currency without the political infrastructure to enforce borrowing and spending discipline among its member states.
“Imagine if you were to expect from the U.S. to take over a guarantee of Mexican public debt,” said Friedrich Heinemann, an economist at the Centre for European Economic Research in Mannheim. “The U.S. would never do that. In a way, southern Europe expects some of this sort of help from Germany."
Though Merkel has recently led discussions setting forth a framework for that political union, it would take year to implement. Europe doesn’t have that much time.
The Frankfurter Allgemeine Zeitung worried aloud that Germany was getting soft on the kind of strict conditions imposed on Greece in exchange for financial aid. "Italy will also be happy to take money without tough conditions and Ireland may demand that its conditions be softened retroactively," it said.
Greece itself hinted Monday that it would like more lenient terms for its rescue plan. But Greece is not Spain; Spain's economic size alone gives it more leverage.
In the end, though, loss of popular support in Germany may not alter the outcome of the eurozone crisis, according to Roger Nightingale, economist at RDN Associates
“I don’t think it helps even if the Germans are behind it,' he said. “ I don’t think it helps if the Americans and the Chinese and the Japanese are behind it. They're tackling the wrong problem. The problem is not the Spanish banks. The problem is the weak economy.”


The Supreme Court and the struggle for judicial independence.

by June 18, 2012

People’s attitude toward judicial review usually depends on the makeup of the Court.

Originally, the Supreme Court of the United States met in a drafty room on the second floor of an old stone building called the Merchants’ Exchange, at the corner of Broad and Water Streets, in New York. The ground floor, an arcade, was a stock exchange. Lectures and concerts were held upstairs. For meeting, there weren’t many places to choose from. Much of the city had burned to the ground during the Revolutionary War; nevertheless, New York became the nation’s capital in 1785. After George Washington was inaugurated in 1789, he appointed six Supreme Court Justices—the Constitution doesn’t say how many there ought to be—but on February 1, 1790, the first day the Court was called to session, upstairs in the Exchange, only three Justices showed up and so, lacking a quorum, court was adjourned.
Months later, when the nation’s capital moved to Philadelphia, the Supreme Court met in City Hall, where it shared quarters with the mayor’s court. Not long after, the Chief Justice, John Jay, wrote to the President to let him know that he was going to skip the next session because his wife was having a baby (“I cannot prevail on myself to be then at a Distance from her,” Jay wrote to Washington), and because there wasn’t much on the docket, anyway.
This spring, the Supreme Court—now housed in a building so ostentatious that Justice Louis Brandeis, who, before he was appointed to the bench, in 1916, was known as “the people’s attorney,” refused to move into his office—is debating whether the Affordable Care Act violates the Constitution, especially with regard to the word “commerce.” Arguments were heard in March. The Court’s decision will be final. It is expected by the end of the month.
Under the Constitution, the power of the Supreme Court is quite limited. The executive branch holds the sword, Alexander Hamilton wrote in the Federalist No. 78, and the legislative branch the purse. “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” All judges can do is judge. “The judiciary is beyond comparison the weakest of the three departments of powers,” Hamilton concluded, citing, in a footnote, Montesquieu: “Of the three powers above mentioned, the judiciary is next to nothing.”
The Supreme Court used to be not only an appellate court but also a trial court. People also thought it was a good idea for the Justices to ride circuit, so that they’d know the citizenry better. That meant more time away from their families, and, besides, getting around the country was a slog. Justice James Iredell, who said he felt like a “travelling postboy,” nearly broke his leg when his horse bolted. Usually, he had to stay at inns, where you shared rooms with strangers. The Justices hated riding circuit and, in 1792, petitioned the President to relieve them of the duty, writing, “We cannot reconcile ourselves to the idea of existing in exile from our families.” Washington, who was childless, was unmoved.123
In 1795, when John Jay resigned from the office of Chief Justice to become governor of New York, Washington asked Alexander Hamilton to take his place; Hamilton said no. So did Patrick Henry. Anyone who wanted the job had to be a little nutty. The Senate rejected Washington’s next nominee for Jay’s replacement, the South Carolinian John Rutledge, whereupon Rutledge tried to drown himself near Charleston, crying out to his rescuers that he had been a judge for a long time and “knew of no Law that forbid a man to take away his own Life.”
In 1800, the capital moved to Washington, D.C., and the following year John Adams nominated his Secretary of State, the arch-Federalist Virginian John Marshall, to the office of Chief Justice. Adams lived in the White House. Congress met at the Capitol. Marshall took his oath of office in a “meanly furnished, very inconvenient” room in the Capitol Building, where the Justices, who did not have clerks, had no room to put on their robes (this they did in the courtroom, in front of gawking spectators), or to deliberate (this they did in the hall, as quietly as they could). Cleverly, Marshall made sure that all the Justices rented rooms at the same boarding house, so that they could at least have someplace to talk together, unobserved.
Marshall was gangly and quirky and such an avid listener that Daniel Webster once said that, on the bench, he took in counsel’s argument the way “a baby takes in its mother’s milk.” He became Chief Justice just months before Thomas Jefferson became President. Marshall was Jefferson’s cousin and also his fiercest political rival, if you don’t count Adams. Nearly the last thing Adams did before leaving office was to persuade the lame-duck Federalist Congress to pass the 1801 Judiciary Act, reducing the number of Supreme Court Justices to five—which would have prevented Jefferson from naming a Justice to the bench until two Justices left. The newly elected Republican Congress turned right around and repealed that act and suspended the Supreme Court for more than a year.
In February, 1803, when the Marshall Court finally met, it did something really interesting. In Marbury v. Madison, a suit against Jefferson’s Secretary of State, James Madison, Marshall granted to the Supreme Court a power it had not been explicitly granted in the Constitution: the right to decide whether laws passed by Congress are constitutional. This was such an astonishing thing to do that the Court didn’t declare another federal law unconstitutional for fifty-four years.
The Supreme Court’s decision about the constitutionality of the Affordable Care Act will turn on Article I, Section 8, of the Constitution, the commerce clause: “Congress shall have power . . . to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In Gibbons v. Ogden, Marshall interpreted this clause broadly: “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.” (“Intercourse” encompassed all manner of dealings and exchanges: trade, conversation, letter-writing, and even—if plainly outside the scope of Marshall’s meaning—sex.) Not much came of this until the Gilded Age, when the commerce clause was invoked to justify trust-busting legislation, which was generally upheld. Then, during the New Deal, the “power to regulate commerce,” along with the definition of “commerce” itself, became the chief means by which Congress passed legislation protecting people against an unbridled market; the Court complied only after a protracted battle. In 1964, the commerce clause formed part of the basis for the Civil Rights Act, and the Court upheld the argument that the clause grants Congress the power to prohibit racial discrimination in hotels and restaurants.
In 1995, in U.S. v. Lopez, the Court limited that power for the first time since the battle over the New Deal, when Chief Justice William Rehnquist, writing for the majority, overturned a federal law prohibiting the carrying of guns in a school zone: the argument was that gun ownership is not commerce, because it “is in no sense an economic activity.” (In a concurring opinion, Justice Clarence Thomas cited Samuel Johnson’s Dictionary of the English Language.) Five years later, in U.S. v. Morrison, Rehnquist, again writing for the majority, declared parts of the federal Violence Against Women Act unconstitutional, arguing, again, that no economic activity was involved.
However the Court rules on health care, the commerce clause appears unlikely, in the long run, to be able to bear the burdens that have been placed upon it. So long as conservatives hold sway on the Court, the definition of “commerce” will get narrower and narrower, despite the fact that this will require, and already has required, overturning decades of precedent. Unfortunately, Article I, Section 8, may turn out to have been a poor perch on which to build a nest for rights.
There is more at stake, too. This Court has not been hesitant about exercising judicial review. In Marshall’s thirty-five years as Chief Justice, the Court struck down only one act of Congress. In the seven years since John G. Roberts, Jr., became Chief Justice, in 2005, the Court has struck down a sizable number of federal laws, including one reforming the funding of political campaigns. It also happens to be the most conservative court in modern times. According to a rating system used by political scientists, decisions issued by the Warren Court were conservative thirty-four per cent of the time; the Burger and the Rehnquist Courts issued conservative decisions fifty-five per cent of the time. So far, the rulings of the Roberts Court have been conservative about sixty per cent of the time.
What people think about judicial review usually depends on what they think about the composition of the Court. When the Court is liberal, liberals think judicial review is good, and conservatives think it’s bad. This is also true the other way around. Between 1962 and 1969, the Warren Court struck down seventeen acts of Congress. (“With five votes, you can do anything around here,” Justice William Brennan said at the time.) Liberals didn’t mind; the Warren Court advanced civil rights. Conservatives argued that the behavior of the Warren Court was unconstitutional, and, helped along by that argument, gained control of the Republican Party and, eventually, the Supreme Court, only to engage in what looks like the very same behavior. Except that it isn’t quite the same, not least because a conservative court exercising judicial review in the name of originalism suggests, at best, a rather uneven application of the principle.
The commerce clause has one history, judicial review another. They do, however, crisscross. Historically, the struggle over judicial review has been part of a larger struggle over judicial independence: the freedom of the judiciary from the other branches of government, from political influence, and, especially, from moneyed interests, which is why the Court’s role in deciding whether Congress has the power to regulate the economy is so woefully vexed.
Early American colonists inherited from England a tradition in which the courts, like the legislature, were extensions of the crown. In most colonies, as the Harvard Law professor Jed Shugerman points out in “The People’s Courts: Pursuing Judicial Independence in America” (Harvard), judges and legislators were the same people and, in many, the legislature served as the court of last resort. (A nomenclatural vestige of this arrangement remains in Massachusetts, where the state legislature is still called the General Court.)
In 1733, William Cosby, the royally appointed governor of New York, sued his predecessor, and the case was heard by the colony’s Supreme Court, headed by Lewis Morris, who ruled against Cosby, whereupon the Governor removed Morris from the bench and appointed James DeLancey. When essays critical of the Governor appeared in a city newspaper, Cosby arranged to have the newspaper’s printer, John Peter Zenger, tried for sedition. At the trial, Zenger’s attorneys objected to the Justices’ authority, arguing that justice cannot be served by “the mere will of a governor.” Then DeLancey simply ordered Zenger’s attorneys disbarred.
Already in England, a defiant Parliament had been challenging the royal prerogative, demanding that judicial appointments be made not “at the king’s pleasure” but “during good behavior” (effectively, for life). Yet reform was slow to reach the colonies, and a corrupt judiciary was one of the abuses that led to the Revolution. In 1768, Benjamin Franklin listed it in an essay called “Causes of American Discontents,” and, in the Declaration of Independence, Jefferson included on his list of grievances the king’s having “made Judges dependent on his Will alone.”
The principle of judicial independence is related to another principle that emerged during these decades, much influenced by Montesquieu’s 1748 “Spirit of Laws”: the separation of powers. “The judicial power ought to be distinct from both the legislative and executive, and independent,” Adams argued in 1776, “so that it may be a check upon both.” There is, nevertheless, a tension between judicial independence and the separation of powers. Appointing judges to serve for life would seem to establish judicial independence, but what power then checks the judiciary? One idea was to have the judges elected by the people; the people then check the judiciary.
At the Constitutional Convention, no one argued that the Supreme Court Justices ought to be popularly elected, not because the delegates were unconcerned about judicial independence but because there wasn’t a great deal of support for the popular election of anyone, including the President (hence, the electoral college). The delegates quickly decided that the President should appoint Justices, and the Senate confirm them, and that these Justices ought to hold their appointments “during good behavior.”
Amid the debate over ratification, this proved controversial. In a 1788 essay called “The Supreme Court: They Will Mould the Government into Almost Any Shape They Please,” one anti-Federalist pointed out that the power granted to the Court was “unprecedented in any free country,” because its Justices are, finally, answerable to no one: “No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.” This is among the reasons that Hamilton found it expedient, in the Federalist No. 78, to emphasize the weakness of the judicial branch.
Jefferson, after his battle with Marshall, came to believe that “in a government founded on the public will, this principle operates . . . against that will.” In much that same spirit, a great many states began instituting judicial elections, in place of judicial appointment. You might think that elected judges would be less independent, more subject to political forces, than appointed ones. But timeless political truths are seldom true and rarely timeless. During the decades that reformers were lobbying for judicial elections, the secret ballot was thought to be more subject to political corruption than voting openly. Similarly, the popular vote was considered markedly less partisan than the spoils system: the lesser, by far, of two evils.
Nor was the nature of the Supreme Court set in stone. In the nineteenth century, the Court was, if not as weak as Hamilton suggested, nowhere near as powerful as it later became. In 1810, the Court moved into a different room in the Capitol, where a figure of Justice, decorating the chamber, had no blindfold but, as the joke went, the room was too dark for her to see anything anyway. It was also dank. “The deaths of some of our most talented jurists have been attributed to the location of this Courtroom,” one architect remarked. It was in that dimly lit room, in 1857, that the Supreme Court overturned a federal law for the first time since Marbury v. Madison. In Dred Scott v. Sandford, Chief Justice Roger B. Taney, writing for the majority, voided the Missouri Compromise by arguing that Congress could not prohibit slavery in the territories.
In 1860, the Court moved once more, into the Old Senate Chamber. When Abraham Lincoln was inaugurated, on the East Portico of the Capitol, Taney administered the oath, and Lincoln, in his address, confronted the crisis of constitutional authority. “I do not forget the position, assumed by some, that constitutional questions are to be decided by the Supreme Court,” he said, but “if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by the decisions of Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers, having to that extent, practically resigned their government into the hands of that eminent tribunal.” Five weeks later, shots were fired at Fort Sumter.
In the decades following the Civil War, an increasingly activist Court took up not only matters relating to Reconstruction, and especially to the Fourteenth Amendment, but also questions involving the regulation of business, not least because the Court ruled that corporations could file suits, as if they were people. And then, beginning in the eighteen-nineties, the Supreme Court struck down an entire docket of Progressive legislation, including child-labor laws, unionization laws, minimum-wage laws, and the progressive income tax. In Lochner v. New York (1905), in a 5–4 decision, the Court voided a state law establishing that bakers could work no longer than ten hours a day, six days a week, on the ground that the law violated a “liberty of contract,” protected under the Fourteenth Amendment. In a dissenting opinion, Justice Oliver Wendell Holmes accused the Court of wildly overreaching its authority. “A Constitution is not intended to embody a particular economic theory,” he wrote.
For a long time, legal scholars agreed with Holmes. But in “Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform” (Chicago), David E. Bernstein, a law professor at George Mason University, takes issue with the logic by which Lochner has become “likely the most disreputable case in modern constitutional discourse.” Bernstein’s measured plea that Lochner be treated “like a normal, albeit controversial, case” is perfectly sensible; less persuasive is his argument that, by favoring individual rights over government regulation, Lochner-era rulings protected the interest of minorities.
Lochner led to an uproar. In 1906, Roscoe Pound, the eminent legal scholar and later dean of Harvard Law School, delivered an address before the American Bar Association called “The Causes of Popular Dissatisfaction with the Administration of Justice,” in which he echoed Holmes’s dissent in Lochner. “Putting courts into politics, and compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the Bench,” he warned. Bernstein waves this aside, arguing that Pound didn’t wholly comprehend the facts of the case, and insists that any discontent with the Court’s ruling in Lochner abated almost immediately. It remains, however, that Lochner, together with a host of other federal- and state-court rulings, contributed to a surge of popular interest in judicial independence, including calls for “judicial removal”: the firing of judges by a simple majority of the legislature. In 1911, Arizona, preparing to enter the union, had a proposed constitution that included judicial recall, the removal of judges by popular vote, which was also a platform of Theodore Roosevelt’s Bull Moose campaign. The U.S. Congress approved the state’s constitution, but when it went to the White House William Howard Taft vetoed it. He objected to recall. Before he became President, Taft was a judge. He wanted not less judicial power but more. The next year, Taft began lobbying Congress for funds to erect for the Supreme Court a building of its own.
On October 13, 1932, Herbert Hoover laid the cornerstone, at a construction site across from the Capitol. The plan was to build the greatest marble building in the world; marble had been shipped from Spain, Italy, and Africa. At the ceremony, after Hoover emptied his trowel, Chief Justice Charles Evans Hughes delivered remarks recalling the Court’s long years of wandering. “The court began its work as a homeless department of the government,” Hughes said, but “this monument bespeaks the common cause, the unifying principle of our nation.”
In 1906, Hughes had run for governor of New York against William Randolph Hearst; as against Hearst’s five hundred thousand dollars, Hughes spent six hundred and nineteen dollars. Miraculously, he won. Once in office, he pushed through the state legislature a campaign-spending limit. In 1910, Taft appointed Hughes to the Supreme Court, where, as a champion of civil liberties, he often joined with Holmes in dissent. Hughes resigned from the bench in 1916 to run for President; he lost, narrowly, to Woodrow Wilson. After serving as Secretary of State under Warren G. Harding and Calvin Coolidge, he was appointed Chief Justice in 1930.
Three weeks after Hoover laid the cornerstone for the new Supreme Court Building, F.D.R. was elected President, defeating the incumbent by a record-breaking electoral vote: 472 to 59. As the New York Law School professor James F. Simon chronicles in “F.D.R. and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle Over the New Deal” (Simon & Schuster), the President-elect immediately began lining up his legislative agenda. He met with Holmes, who told him, “You are in a war, Mr. President, and in a war there is only one rule, ‘Form your battalion and fight!’ ”
By June of 1933, less than a hundred days after his Inauguration, F.D.R. had proposed fifteen legislative elements of his New Deal, all having to do with the federal government’s role in the regulation of the economy—and, therefore, with the commerce clause—and each had been made law. Now the New Deal had to pass muster in Hughes’s court, where four conservative Justices, known as the Four Horsemen, consistently voted in favor of a Lochnerian liberty of contract, while the three liberals—Louis Brandeis, Benjamin Cardozo, and Harlan Fiske Stone—generally supported government regulation. That left Hughes and Owen Roberts. In early rulings, Hughes and Roberts joined the liberals, and the Court, voting 5–4, let New Deal legislation stand. “While an emergency does not create power,” Hughes said, “an emergency may furnish the occasion for the exercise of the power.”
In the January, 1935, session, the Court heard arguments in another challenge. F.D.R., expecting an adverse decision, prepared a speech in which he quoted Lincoln’s remarks about Dred Scott, adding, “To stand idly by and to permit the decision of the Supreme Court to be carried through to its logical, inescapable conclusion” would “imperil the economic and political security of this nation.” The speech was never given. In another 5–4 decision, Hughes upheld F.D.R.’s agenda, leading one of the horsemen to burst out, “The Constitution is gone!”—a comment so unseemly that it was stricken from the record.
On May 27, 1935—afterward known as Black Monday—the Supreme Court met, for very nearly the last time, in the Old Senate Chamber. In three unanimous decisions, the Court devastated the New Deal. Most critically, it found that the National Recovery Administration, which Roosevelt had called the “most important and far-reaching legislation in the history of the American Congress,” was unconstitutional, because Congress had exceeded the powers granted to it under the commerce clause. Four days later, the President held a press conference in the Oval Office. He compared the gravity of the decision to Dred Scott. Then he raged, “We have been relegated to the horse-and-buggy definition of interstate commerce.” But, in the horse-and-buggy days, the Court didn’t have half as much power as it had in 1935.
The Supreme Court’s new building opened six months later, on October 7, 1935. A pair of reporters described the place as “a classical icebox decorated for some surreal reason by an insane upholsterer.” Nine Justices took their seats in the same raggedy assortment of chairs they had used in the Senate Chamber. Asked whether he wanted a new chair, Justice Cardozo had refused. “No,” he replied slowly, “if Justice Holmes sat in this chair for twenty years, I can sit in it for a while.”
And then the Hughes Court went on a spree. In eighteen months, it struck down more than a dozen laws. Congress kept passing them; the Court kept striking them down, generally 5-4. At one point, F.D.R.’s Solicitor General fainted, right there in the courtroom.
The President began entertaining proposals about fighting back. One senator had an idea. “It takes twelve men to find a man guilty of murder,” he said. “I don’t see why it should not take a unanimous court to find a law unconstitutional.” That might have required a constitutional amendment, a process that is notoriously corruptible. “Give me ten million dollars,” Roosevelt said, “and I can prevent any amendment to the Constitution from being ratified by the necessary number of states.”
Meanwhile, the President was running for reëlection. A week before Election Day, an attack on the Hughes Court, titled “The Nine Old Men,” began appearing in the nation’s newspapers and in bookstores. F.D.R. defeated the Republican, Alf Landon, yet again breaking a record in the electoral college: 523 to 8. In February, 1937, Roosevelt floated his plan: claiming that the Justices were doddering, and unable to keep up with the business at hand, he would name an additional Justice for every sitting Justice over the age of seventy. There were six of them, including the Chief Justice, who was seventy-four.
The President’s approval rating fell. In a radio address on March 9, 1937, he argued that the time had come “to save the Constitution from the Court, and the Court from itself.” Then Hughes all but put the matter to rest. “The Supreme Court is fully abreast of its work,” he reported on March 22nd, in a persuasive letter to the Senate Judiciary Committee. If efficiency were actually a concern, he argued, there was a great deal of evidence to suggest that more Justices would only slow things down.
What happened next is clear: starting with West Coast Hotel Co. v. Parrish, a ruling issued on March 29, 1937, in a 5–4 opinion written by Hughes, that sustained a minimum-wage requirement, the Supreme Court began upholding the New Deal. Owen Roberts had switched sides, a move so sudden, and so crucial to the preservation of the Court, that it has been called “the switch in time that saved nine.” Why this happened is not quite as clear. It looked purely political. “Even a blind man ought to see that the Court is in politics,” Felix Frankfurter wrote to Roosevelt. “It is a deep object lesson—a lurid demonstration—of the relation of men to the ‘meaning’ of the Constitution.” It wasn’t as lurid as all that; it had at least something to do with the law.
On May 18, 1937, the Senate Judiciary Committee voted against the President’s proposal. The court-packing plan was dead. Six days later, the Supreme Court upheld the old-age-insurance provisions of the Social Security Act. The President, and his deal, had won.
On either side of the Supreme Court steps, on top of fifty-ton marble blocks, sits a sculpted figure: the Contemplation of Justice, on the left, and the Authority of Law, on the right. In the pediment above the portico, Liberty gazes into the future; Charles Evans Hughes crouches by her side. Inside, a bronze statue of John Marshall stands in the Lower Great Hall. Above him, etched into marble, are his remarks from Marbury v. Madison: “It is emphatically the province and duty of the judicial department to say what the law is.”
Within the walls of that building, Dred Scott is nowhere to be found, and Lochner stalks the halls like a ghost. Portraits of the first Chief Justices, starting with John Jay, hang in the East Conference Room, and of the later Justices, in the West. A portrait of Earl Warren was installed after his death, in 1974. Beginning with the Court’s ruling in Brown v. Board of Education, in 1954, Warren presided over the most activist liberal court in American history. “I would like this court to be remembered as the people’s court,” Warren said when he retired, in 1969. He was pointing to the difference between conservative judicial activism and liberal judicial activism: one protects the interests of the powerful and the other those of the powerless.
The Supreme Court has been deliberating in a temple of marble for three-quarters of a century. In March, it heard oral arguments about the Affordable Care Act. No one rode there in a horse and buggy. There was talk, from the bench, of heart transplants, and of a great many other matters unthinkable in 1789. Arguments lasted for three days. On the second day, the Solicitor General insisted that the purchase of health insurance is an economic activity. Much discussion followed about whether choosing not to buy health insurance is an economic activity, too, and one that Congress has the power to regulate. If you could require people to buy health insurance, Justice Antonin Scalia wanted to know, could you require them to buy broccoli? “No, that’s quite different,” the Solicitor General answered. “The food market, while it shares that trait that everybody’s in it, it is not a market in which your participation is often unpredictable and often involuntary.” This did not appear to satisfy.
The ruling that the Supreme Court hands down this month will leave unanswered questions about the relationship between the judicial and the legislative branches of government, and also between the past and the present. The separation of law from politics for which the Revolution was fought has proved elusive. That’s not surprising—no such separation being wholly possible—but some years have been better than others. One of the worst was 2000, when the Court determined the outcome of a disputed Presidential election. The real loser in that election, Justice John Paul Stevens said in his dissent in Bush v. Gore, “is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
For centuries, the American struggle for a more independent judiciary has been more steadfast than successful. Currently, nearly ninety per cent of state judges run for office. “Spending on judicial campaigns has doubled in the past decade, exceeding $200 million,” Shugerman reports. In 2009, after three Iowa supreme-court judges overturned a defense-of-marriage act, the American Family Association, the National Organization for Marriage, and the Campaign for Working Families together spent more than eight hundred thousand dollars to campaign against their reëlection; all three judges lost. “I never felt so much like a hooker down by the bus station,” one Ohio supreme-court justice told the Times in 2006, “as I did in a judicial race.”
Federally, few rulings have wreaked such havoc on the political process as the 2010 case Citizens United v. Federal Election Commission, whereby the Roberts Court struck down much of the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns. Stevens, in his dissent, warned that “a democracy cannot function effectively when its constituent members believe laws are being bought and sold.”
That, in the end, is the traffic to worry about. If not only legislators but judges serve at the pleasure of lobbyists, the people will have ceased to be their own rulers. Law will be commerce. And money will be king.
ILLUSTRATION: The Heads of State