The Supreme Court in the cross hairs

Some people now look to the US Supreme Court to overturn the torture-approving legislation passed last week by the Congress. Some members felt that it was unconstitutional but voted for it anyway, perhaps fearing that they would be charged with being ‘soft on terrorism.’

Depending on any single agency to defend fundamental rights on our behalf is a dangerous strategy because those agencies are susceptible to pressure.

Even though the present Supreme Court is already very sympathetic to the idea of giving the administration all the power it wants even when it is skating very close to the constitutional edge, the present administration is taking no chances that the courts will derail its efforts to do what it wants. We already see the administration’s efforts to intimidate the court so that it will go along with the administration’s wishes or, in the event that it does reject this legislation as unconstitutional, laying the groundwork to ignore the decision of the court.

Attorney General Alberto Gonzales already fired the opening salvo last week, by implying that if the courts overrule this legislation, they are imposing their personal views and should expect harsh criticism.

Attorney General Alberto Gonzales, who is defending President Bush’s anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president’s judgments in wartime.

He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president’s pre-eminent role in foreign affairs. “The Constitution, by contrast, provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime,” the attorney general told a conference on the judiciary at Georgetown University Law Center.

“Judges must resist the temptation to supplement those tools based on their own personal views about the wisdom of the policies under review,” Gonzales said.

And he said the independence of federal judges, who are appointed for life, “has never meant, and should never mean, that judges or their decisions should be immune” from public criticism.

“Respectfully, when courts issue decisions that overturn long-standing traditions or policies without proper support in text or precedent, they cannot — and should not — be shielded from criticism,” Gonzales said. “A proper sense of judicial humility requires judges to keep in mind the institutional limitations of the judiciary and the duties expressly assigned by the Constitution to the more politically accountable branches.”

Although this warning to the justices was quite blunt, Newt Gingrich, former speaker and supposed seeker for the Republican nomination for the presidency in 2008, was even blunter. He argued that the government has the right to simply ignore the verdict of the court.

Supreme Court decisions that are “so clearly at variance with the national will” should be overridden by the other branches of government, former House Speaker Newt Gingrich says.

“What I reject, out of hand, is the idea that by five to four, judges can rewrite the Constitution, but it takes two-thirds of the House, two-thirds of the Senate and three-fourths of the states to equal five judges,” Gingrich said during a Georgetown University Law Center conference on the judiciary.

It takes approval by two-thirds of Congress and three-fourths of the 50 states to adopt an amendment to the Constitution, the government’s bedrock document.

Gingrich, a Republican who represented a district in Georgia, noted that overwhelming majorities in Congress had reaffirmed the Pledge of Allegiance, and most of the public believes in its right to recite it.

As such, he said, “It would be a violation of the social compact of this country for the Supreme Court to decide otherwise and would lead, I hope, the two other branches to correct the court.”

This notion that someone can somehow divine the “will of the people” is always the one that is used by demagogues to ride roughshod over the institutional checks and balances that have been painstaking built up over the years. The constitution does not recognize the vague “social compacts” that Gingrich refers to. In fact, constitutions are deliberately designed to prevent the temporary passions that can engulf a people at certain times from creating lasting damage. In times of great stress, it may well be the “will of the people” to round up suspects and shoot them without trial, just like they used to summarily lynch black people. The whole point of the rule of law and constitutional protections is to restrain those who would act in the heat of the moment.

People like Gingrich and other enablers of authoritarian regimes like the one currently controlling the White House are always eager to dismantle these constitutional protections because they hinder their ambitions to achieve greater power and control over their people.

I am constantly amazed at how this government is doing the same thing that the Sri Lankan president did following his election in 1977. It is almost as if there is some kind of secret listserv that all authoritarian leaders can sign on to so that they know what they need to do to circumvent constitutional protections and grab more power. That Sri Lankan president too constantly asserted that the “will of the people” supported whatever he wanted to do and proceeded to systematically rewrite the constitution to give him more power. He too set about intimidating the Supreme Court by issuing harsh criticisms of their decisions and organizing demonstrations in front of the judge’s homes.

John Dean, who was White House counsel to President Nixon and thus witnessed the authoritarian mindset close up, says in an interview in the October 2006 issue of The Progressive magazine that this administration, especially Dick Cheney, has been determined to expand presidential powers. He says he “can’t find in history any other Presidency that has made it a matter of policy to expand Presidential powers.” He adds, “To me the fact that a Vice President can go to Capitol Hill and lobby for torture is just unbelievable. Just unbelievable! I can’t even get there mentally.”

The interview ends with him saying “I fear for the [democratic] system. And I fear for our liberties.”

In order to understand the dynamics of what is going on currently we have to develop a new framework with which to analyze events.

First of all we have to realize that the real enemy of an authoritarian government is not some external threat but the very people it is supposed to be governing. Their real goal is to cow, intimidate, and otherwise subdue their own population so that they will not resist the actions of the government.

In the current case, we are repeatedly told that the enemy the country is facing is terrorism and these kinds of torture legislation are the weapons it needs to fight it. But the actions of this regime are easier to understand if we realize that we, the people, are the real enemy of the administration, and the fear of terrorism is the weapon used to control us.

In order to resist the steady evisceration of basic liberties and the constitution, we cannot depend on our elected representatives or the judiciary to take the lead and fight for those rights. They are too craven to lead. They will only follow. The only way to safeguard civil liberties and constitutional freedoms is by everyone loudly and vocally valuing them, protecting them, and using them. The words of Judge Learned Hand are always worth remembering and repeating:

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.

If Judge Learned hand were alive today, I wonder what his verdict would be.

It is quite amazing to me that the Bill of Rights, that shining jewel in the US constitution that is a landmark in the conceptualizing of the fundamental protections that any civilized society should afford its people, is now seen as some sort of quaint anachronism, something that can be dispensed with at the whim of an authoritarian government that claims that it, and it alone, knows what the “will of the people” is.

POST SCRIPT: Exposing the posturers

The Daily Show highlights the hypocrisy and posturing of Senators John “Straight Talk Express” McCain, Lindsey Graham, Arlen Specter, and John Warner on the detainee bill.


  1. Gregory Szorc says

    I seriously hope the party speak of “let’s ignore the courts because we know what is best” is just election-time politics to underscore a tough stance on terrorism. Something is seriously wrong any time you have to force yourself into the realm of the Supreme Court. They are appointed to life terms so they may rule without bias. If the people really want to change something, to change the protections guaranteed us in the Constitution and Bill of Rights, then a Constitutional Amendment or a Constitutional Convention shall be had. What is the point of the Supreme Court if the government doesn’t heed their decisions? What does that say about our elected officials and the people who elected them? Recent developments are really scaring me…

  2. Rian says

    McCain has a politically (definitely not morally, but politically) defensible excuse.

    With Bush being the head of the Republican Party and it’s impressive fundraising machine, defying him before the 2008 Presidental election would deny him much of the ability to run in said election. Electioneering is mostly about who has the largest pile of money, and the Republican “war chest” is already formidable.

    The others probably had similar threats leveled against them, but McCain had the most to lose politically by intrasignce.

  3. Erin says

    I think McCain has another politically defensible excuse too — he tried to bargain with Bush, and presumably part of that bargain was voting for the eventual bill. How much power did he have to change it? Being a hardliner can only take a politician so far when the “other side” holds the power. My interpretation is that McCain knew the bill was a horrible outcome, believed that it would have been even worse without his intervention, and feared that if he did not fulfill his end of the deal, his ability to bargain with Bush in the future would be impaired. I’m sure he knows full well what he supported, and I doubt he sleeps well at night. Is he an effective opposition? No, certainly not when compared against the standard I have in mind. But I have no idea whether that standard is realistic, here and now, and so I find it hard to condemn the feeble opposition we do have.

    Don’t get me wrong, though, I think we’re all right to be outraged. I have been depressed and angry about this for a couple of weeks. I don’t really know what to do about it. Every political act seems so pointless, save the “null act” of living my life as I choose to and damn the torpedos.

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