An education #1: The Supreme Court

Here’s the deal. Two thoughts have conflated. One occurred while watching the excellent final of Euro 2012 last night, before and after which we were invited to look back upon what has been a memorable tournament. It was at this point, as if to illustrate the deficiencies of my non-footballing brain, that I realised that I can’t even remember the scores, or the goal-scorers, from most of the matches I have watched over the last three weeks. This is not just my 47-year-old mind going, as I can remember the names of actors from way down the cast of films that I shouldn’t even remember. It’s just that my brain isn’t tuned to football the way serious football fans’ brains are. (When I sat down to watch this one, after my traditional two-year sabbatical, I seriously couldn’t remember off the top of my head who’d won the 2010 World Cup, or Euro 2008. Both are imprinted there now, but ask me in a year’s time.)

The other thought was this: with the sad closure of Word magazine, a couple of people looking down the barrel of a dystopia with less printed words in have asked if a subscription to the New Yorker (one of a number of influences on Word in its prenatal stage) might help ease the pain. I have been a subscriber to the New Yorker since March 2005, when Stuart Maconie thoughtfully bought me a year’s subscription as a 40th birthday present. Once it started arriving on my mat once a week, I became quickly hooked. I can’t imagine a world without it. (It’s particularly handy at Presidential Election time, but not just, as I sincerely believe that to be disinterested in US politics is to be disinterested in global politics. And if anyone’s going to report from the frontline of American life, I’d prefer it to be a bunch of die-hard liberals.)

Anyway, it’s a struggle most weeks to get through the whole magazine. (I recycle mine by passing them on to a friend at Radio Times, who, when she’s done with them, passes them on again – I rarely give an issue up to this value-added cycle within a week of receiving it.) As such, I’m always in intellectual arrears. There’s enough brain food in a single issue to last a month. This means serious reading, and serious staying power. If you don’t know already, the pieces in the New Yorker are long. And detailed. To put them into context, the cover story I wrote about the Stone Roses for a recent issue of Word, which by definition will have been about the longest story in the issue, was 4,000 words. The double-page spread I write for Radio Times most weeks comes in at around 800. The New Yorker doesn’t have a cover story (it doesn’t even tell you what’s inside the issue on the cover), but its longest pieces can be more like 12,000 words. That’s a tenth of Where Did It All Go Right?

The New Yorker article I’m about to disseminate is about 5,000 words.

So, in order to counter the erosion of my memory, and to perhaps pass on some interesting information from a magazine that is jam-packed full of information (its fact-checking culture is legendary), I have decided to run an occasional series on this blog of articles about articles I have read.

This one, by Jill Lepore, was tucked away at the back of the Jun 18 issue (cover image above), and entitled, with typical elan and economy, Benched. It’s about the Supreme Court and was written before this august and powerful institution voted for “Obamacare” and surprised everybody. (I can’t wait to read this week’s New Yorker and its editors’ thoughts on what might be a turning point for Obama’s re-election chances.)

Essentially a history of the Supreme Court of the United States, forged in New York (then the nation’s capital; still the nation’s capital according to the New Yorker!) in 1789 when George Washington appointed six Supreme Court Justices, Lepore’s end-point is, clearly, the Affordable Care Act and whether or not today’s bench of nine decide that it violates the Constitution or not, vis-a-vis “commerce.” (Can the government constitutionally force its citizens to take out health insurance? Spoiler alert: yes it can.)

As Lepore states early on, “under the Constitution, the power of the Supreme Court is quite limited.” Its executive branch “holds the sword”, the legislative branch “the purse”, and the judiciary, neither; “no direction either of the strength or of the wealth of the society”. It’s tough for us Limeys to understand the Supreme Court, as we don’t have one, but if there’s one subject that comes up more frequently in the New Yorker than baseball and/or whatever Malcolm Gladwell is thinking about, it’s the Supreme Court, so it’s as well to do some homework, which is what this feature turned out to be, and why I ploughed through all 5,000 words of it.

I discovered that, under George Washington, the Justices of the Supreme Court were expected to “ride circuit” (one of those great phrases that make reading this magazine such a thrill), in other words, they were expected to judge ordinary cases as well as supreme ones, as it were. But this was scrapped. It’s basic stuff to American history students, but I now know that in 1800, the capital moved to Washington, D.C., and the following year president John Adams (Paul Giamatti) was the first to live in the White House, while Congress met at the Capitol. His Chief Justice ensured that all the Justices rented rooms at the same boarding house, “so that they could at least have someplace to talk together, unobserved.”

Under Adams, the 1801 Judiciary Act reduced the number of Supreme Court Justices to five. I’m afraid I didn’t quite catch when this was engorged to the present nine. Under Jefferson, the Supreme Court was granted 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.”) Article I, Section 8, of the Constitution: “Congress shall have power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” During the New Deal in the 1930s, 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.” (In 1964, the commerce clause formed part of the basis for the Civil Rights Act.) As you can guess, the solid Democrat base of the New Yorker means that the Supreme Court’s power to fiddle with commerce – that “unbridled market” which gives Republicans such an under-the-desk hard-on – is taken on trust as a good thing. To the right, it’s bad.

There are lots of landmark rulings cited along the way – Lochner v. New York in 1905, where the Court “voided a state law establishing that bakers could work no longer than ten hours a day, six days a week”, on the grounds that the law violated a “liberty of contract” (cue: sound of employers rubbing their hands in glee); U.S. v. Lopez, in which it was decreed that gun ownership is not commerce, “because it is in no sense an economic activity”; U.S. v. Morrison, in which parts of the federal Violence Against Women Act were judged unconstitutional; and one that is enshrined in US lore: Dred Scott v. Sandford (“Dred Scott”), which in 1857 voided the Missouri Compromise by arguing that Congress could not prohibit slavery in the territories, and effectively put slaves and their descendents outside of the constitution.

Lepore’s thesis, neatly woven through this chunky history, is simply that the Court is getting more political. Under game-changing arch-Federalist Chief Justice John Marshall’s 35 years in office – that’s six administrations from Adams to Jackson 1801-35 – we learn that the Court struck down only one act of Congress; by comparison, in the seven years since John G. Roberts, Jr. (a Bush appointee) took the job in 2005, the Court has struck down “a sizable number of federal laws, including one reforming the funding of political campaigns.” She describes it as “the most conservative court in modern times”, its rulings under Roberts pleasing the right 60% of the time, according to figures, which is way up basically.

We go back to the early American colonists, “who inherited from England a tradition in which the courts, like the legislature, were extensions of the crown.” Over here, 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.'” (This phrase “good behaviour”, which means, effectively, for life, recurs.) The Justices are chosen by the President and confirmed by the Senate, and it’s a gig for life. But who judges the judges?

Since it successfully rubbed out a “labor” law protecting the health of employees in favour of the employer, the aforementioned “Lochner” (known by just the one name) is said to have become “likely the most disreputable case in modern constitutional discourse.” (From where I’m sitting the American right are all for the individual, as long as that individual is an employer, not an employee.) In 1906, legal scholars rounded on it, one of them writing, “Putting courts into politics, and compelling judges to become politicians … has almost destroyed the traditional respect for the Bench.”

As ever with a New Yorker piece, you learn some things off the bat, and you have to do a bit of further reading to understand others. It’s casually referred to, but I had no idea what Theodore Roosevelt’s “Bull Moose campaign” was, for instance. So I checked. It was the nickname of a political party (the Progressive Party) he set up in 1912 after a Republican split, and after he’d been shot but claimed to be as fit as a bull moose. The building that still houses the Court across from the Capitol had its cornerstone laid on October 13, 1932, by Herbert Hoover and marble was shipped in from Spain, Italy, and Africa. Three weeks later, Franklin Roosevelt was elected in an actual landslide and those battles between Congress and the New Deal began. Exciting trivia: by June of 1933, less than 100 days after his inauguration, FDR had proposed 15 legislative elements and each had been made law, passed by the Court, whose four-out-of-nine conservative Justices were known as the Four Horsemen. During the passing of the 16th, one of the horsemen is said to have burst out, “The Constitution is gone!” (“a comment so unseemly that it was stricken from the record”).

The Supreme Court’s new building opened for business in 1935, described in the press as “a classical icebox decorated for some surreal reason by an insane upholsterer.” In the following 18 months, the newly-housed Justices struck down more than a dozen laws. “Congress kept passing them; the Court kept striking them down, generally 5-4. At one point, FDR’s Solicitor General fainted, right there in the courtroom.” You’ve got to love the way the best New Yorker writers humanise otherwise husk-dry material. It’s a detail like the fainting Solicitor General that could help you remember the trouble FDR had in the mid-30s.

Lepore sums up beautifully. “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.” She goes on, “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.”

I started reading the New Yorker in 2005, when Bush was into the second term of that “disputed” election. His presidency gave the magazine’s liberals something to push against. They do not, though, let Obama off the hook, and a 9,500-word piece by Ryan Lizza in the same issue about what the President might do if re-elected (again, written before the Supreme Court judgement went Obamacare’s way) is, although hopeful, honestly argued and superbly contextual. But that’s enough learning for one day.

The full, six-page Supreme Court piece is available online. So have a read. The 12-page Obama re-election piece also happens to be online, in full. (They aren’t always, so this is a bit of luck.) The New Yorker is available in full, digitally, to subscribers and as an iPad edition. It’s almost 90 years old, but it moves with the times. However, with such a lot of words to read, I couldn’t possibly read it offscreen. I need my paper copy. And long may it abide.

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4 thoughts on “An education #1: The Supreme Court

  1. I echo everything Andrew has said about The New Yorker. I’ve been a subscriber now for more than ten years. (An annual subscription is absurdly cheap, compared to the cost of buying one in a UK newsagent.) It’s informative, entertaining, and dazzlingly well-written; in short, the best magazine in the world. And once you start reading it, you notice just how many news and feature articles in British publications were “inspired” by articles in The New Yorker.

    The main challenge is keeping up with it, but I gather that among New Yorker aficionados it’s not uncommon to have an unread pile of issues. I’m presently at five.

    • Thanks, Alex. This just proves that I am more abreast of American law than I am of British law. We seem to have 12 judges, though. What if it’s six votes to six? (I note that the monarch officially appoints ours, but is advised by the PM. So it’s the PM.) Not sure if ours are in the job for life …

      Fascinating stuff.

  2. I live in DC and have visited the SC on several occasions. The building is quite striking, as is the art within. But most stunning is how small the courtroom is: it holds fewer than 400 people, including Justices and staff. I think only 250 members of the general public can get in at a time, making it quite hard to see the court at work. But it’s worth the wait!

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