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Opinion

As Teddy Roosevelt Did, 2016 Candidates Drag the Supreme Court Into Presidential Politics


supreme court

The Supreme Court (Carol Highsmith, via Library of Congress


The Supreme Court is being drawn against its will into the chaotic 2016 presidential campaign.

Republicans Donald Trump and Ted Cruz dislike the court's decisions affirming Obamacare and gay marriage. Democrats Hillary Clinton and Bernard Sanders object to its Citizens United campaign finance decision. Senate Republicans are threatening to block President Obama's nomination to replace recently deceased justice Antonin Scalia, alleging the appointment would be better left to the next president (a Republican, they hope). Donald Trump was (probably) kidding when he said his sister, Federal Court of Appeals Judge Marianne Trump Barry, would make a credible Supreme Court nominee.

In a recent speech, Chief Justice John Roberts lamented that partisan extremism is damaging the public's perception of the court as an unbiased interpreter of the law that is above politics. People too often accuse the court of taking sides in an issue but all it is doing is objectively judging constitutional merits, he said. "We have no policy views on the matter at all," Roberts insisted.

But dragging the court into presidential politics has a long history.

Theodore Roosevelt was the first presidential candidate to assail the court, during the 1912 contest. TR, president 1901-1909, was attempting to gain the Republican presidential nomination and oust the man who had succeeded him, William H. Taft.

On a speech-making tour in the West in the fall of 1910, he attacked big business. The nation was in the midst of a struggle "between the men who possess more than they have earned and the men who have earned more than they possess."

He lambasted the federal courts for lagging behind the times and criticized them for "a series of negative decisions to create a sphere in which neither nation nor state has effective control."

He cited the 1905 U.S. Supreme Court decision in Lochner vs. New York as a prime example. By a vote of 5 to 4, the court had overturned a New York law regulating the hours and working conditions of bakeshop employees on the basis that it violated the provision of the 14th amendment to the Constitution that no state shall "deprive any person of life, liberty, or property, without due process of law." That amendment, passed in 1868, had been intended to protect the civil rights of newly-liberated African-Americans. But the courts had stretched it so that that "liberty of contract" included the right of employers and employees to work for whatever wages and hours both parties agreed to.

The courts had used this broad interpretation of the amendment to strike down a number of state regulatory statutes. TR knew the Lochner case well. As governor of New York, 1899-1901, he had enforced the bakeshop regulations. As president, he had watched the case come up through the New York State court system. In 1904, the State Court of Appeals validated the law in a decision written by its Chief Judge, Alton B. Parker, who later that same year secured the Democratic presidential nomination and ran unsuccessfully against TR. He followed the case in the U.S. Supreme Court the next year and read the decision, which was written by still another New Yorker, Justice Rufus Peckham. But the president made no public comment on it.

Roosevelt, in 1910, however, declared that the Lochner decision had been particularly egregious because it had ignored the problems that the bakeshop law was intended to address and exercised "the negative power of not permitting the abuse to be remedied." The court had demonstrated that it was "against popular rights" by asserting that "men must not be deprived of their 'liberty' to work under unhealthy conditions....Such decisions, arbitrarily and irresponsibly limiting the power of the people are of course fundamentally hostile to every species of real popular government."

Newspaper editorials and political leaders in both parties expressed outrage at the attack on the court.

Roosevelt, undeterred, went on to suggest something even more extreme, allowing voters to recall judges. He advanced a campaign platform filled with liberal proposals, including federal regulation of corporations, a national health service, and insurance for the elderly (similar to Social Security two decades later). His attack on the judiciary seemed menacing and his other proposals were ahead of their time. TR "startled all thoughtful men and women and impressed them with the frightful danger which lies in his political ascendancy," said the New York Times. Roosevelt failed to get the Republican nomination and went on to found a new party, the Progressive Party, but was decisively beaten in the 1912 presidential contest.

The Lochner decision was influential and was often cited by the courts in striking down state and federal regulatory statutes until 1937, when it was in effect repudiated in the decision of West Coast Hotel vs. Parrish.

Supreme Court Justice Rufus Peckham, in his opinion in the 1905 Lochner case, insisted, a little defensively, that "this is not a question of substituting the judgment of the court for that of the legislature." But TR lambasted the court in 1910 for doing just that. John Roberts, at his confirmation hearing to be Chief Justice in 2005, pointedly disagreed with Peckham's assertion a century earlier. Roberts said that the majority in the Lochner decision was "not interpreting the law, they're making the law...substituting their judgment on a policy matter for what the legislature had said."

Roberts was probably right. Theodore Roosevelt would certainly agree.

But Roberts probably shouldn't be surprised, then, that 2016 presidential candidates are criticizing his court, following the precedent set by TR back in 1910.
They believe the court's objectivity has been tarnished.

And, also like TR, they think they see an easy opportunity to score political points.

***
Dr. Bruce W. Dearstyne's latest book is The Spirit of New York: Defining Events in the Empire State's History, published in 2015 by SUNY Press.

Will the Democrats' Fresh Entitlements Lift Poor Families?


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De Blasio on a school visit (photo: Ed Reed, Mayoral Photography Office)


Circle time at preschool teaches much about civility and unity, how best to contribute to a pint-size society.

So when little Lela whispered from the corner, "I'm ready to come back," teacher Katie Wassel in Washington Heights figured lesson learned, the 4-year-old rejoined a tight crescent of fidgeting peers seated on a colorful rug. You can't elbow your neighbor at circle time.

Hillary Clinton draws a wide and inclusive circle all her own, pitching fresh entitlements to ease the financial angst of families – parental leave, universal pre-kindergarten, tuition-free community college – and nudged leftward by young voters, many women, Senator Bernie Sanders, and diehards who continue to 'Feel the Bern.'

Fiscal conservatives warn of ballooning costs for existing social guarantees. But a thornier question confronts Democrats: Might they inadvertently worsen inequality, rather than close disparities between poor and well-heeled families?

Take Mayor Bill de Blasio – poster boy for novel entitlements – and his well-meaning spread of free pre-K for all families, no matter how rich or poor.

His original yarn was a tale of two disparate cities. "The best and the brightest are born in every neighborhood," he declared after winning election, seeking to narrow early gaps in children's learning. A half-century of research findings does show that quality preschool can lift impoverished children.

But Mr. de Blasio pushed for a universal benefit, crawling out on a thin policy limb, ignoring three national studies, including my own with Stanford economist Susanna Loeb, that discern just minuscule and fading effects of pre-K for children from better-off families.

Why? Because most middle-class parents – two-thirds of whom nationwide already enjoy access to pre-K – offer important nurturance at home as well. And if the mayor's pre-K proves to elevate all kids, how would this narrow gaps in children's early growth?

The mayor's fuzzy logic reveals a deeper dilemma for Mrs. Clinton and Democratic candidates: How to rekindle opportunity for the middle class, while delivering on their perennial promise to lift the poor.

White Americans have seen their earnings slip by 3 percent since the late 1990s, falling to $60,300 in mean wages last year. But total income ticked upward, thanks to middle-class tax cuts and rising aid for health care, says the Congressional Budget Office. In stark contrast, nearly 24 million children under age six live below or near the poverty line. Affordable pre-K remains out of reach for half these families.

More than 103,000 four-year-olds populate New York City and are eligible for preschool. Mr. de Blasio has added more than 38,000 full-day pre-K seats citywide, totaling more than 68,500, many in depressed parts of the city. But over 30,000 potential preschoolers remain outside any public program, two-fifths being raised in the city's poorest neighborhoods.

Entitlement hawks also teach us that one size can't fit all, especially when serving the nation's kaleidoscopic variety of families. At first Mr. de Blasio aimed to mainly enlarge the count of preschool seats in city schools, pleasing the teachers union but stirring protests from the city's 1,900 private, mostly nonprofit pre-K's, which have resisted cookie-cutter programs for over a century.

Take parents who prefer half-day pre-K, allowing quality time at home for parent and child, but who now lose their subsidy, given the mayor's insistence on full days inside classrooms. Jewish educators seek more instructional time to advance religious teaching. Charter schools last month appealed Albany's siding with the mayor that he, not charter authorizers, can regulate independent pre-K programs.

New York's experiment also reveals the risk of obsessing on what's new and shiny when regimented entitlements arrive. The mayor largely ignored existing supply, incenting middle-class parents to migrate into tuition-free preschools. This emptied up to 14,900 children from older programs, rather than widening access - what economists dub a substitution effect. "We lost two full classrooms of 4-year-olds," said Don Williams, manager of a Midtown pre-K.

President Obama and Republican governors, like Michigan's Rick Snyder, dodge the risks of unbridled entitlements, opting to expand pre-K access for poor youngsters, while easing middle-class costs via tax credits. A rising count of companies, from Netflix to Goldman Sachs, help shoulder the burden of essential human supports: from paid leave for parents nurturing a newborn to insuring security in old age.

Instead, untethered entitlements go awry when benefits tilt toward better-heeled players, say how price supports for farmers became welfare for the well-off, or when taxpayers underwrite pre-K or high-priced universities for parents who can afford to pay.

The campaign season may prompt serious debate over the future of entitlements, along with how to bolster working families. But as Mrs. Clinton and leading Democrats embrace new social guarantees, pursuing middle-class voters, they should be honest about who they aim to buoy and who they would leave behind.

***
Bruce Fuller, professor of education and public policy at Berkeley, is author of Organizing Locally (University of Chicago Press).

A Budget for Immigrant New York


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photo via Make The Road New York


Growing up in Puebla, Mexico, I was raised to believe that all families, and all communities, deserve their fair share.

Since immigrating to New York, however, I've seen clearly that immigrant communities here often get far from their fair share. Immigrant communities like Woodside, Queens, where I live, too often lack the basic infrastructure and opportunities that residents need—good schools, safe and affordable housing, access to good-paying jobs, and more. We just get the short end of the stick relative to better-off neighborhoods.

As I've followed recent political debates in our state, I've learned that a lot of that has to do with the state budget. The budget, more than anything else that happens in our state each year, has an enormous bearing on shaping the priorities of our state government and determining which programs and regions will get the funding that they need. The budget determines funding for everything from education to housing to health care. And, with more and more policy decisions getting inserted into the budget in recent years as a way of getting around Albany's dysfunction, the budget is actually now the biggest policy-making vehicle in our state.

That's why, this year, my fellow members of Make the Road New York and I are calling for immigrant communities across the state to get our fair share of the state budget. In a new report that we released this week, "A Budget for Immigrant New York," we call for greater equity across the budget, so that immigrant communities can thrive as they deserve.

The report highlights 25 items, but my own story shows why three are so important.

First, we call for the state to include in its budget an increase in the minimum wage to $15 per hour as soon as possible, with indexing to inflation. As a minimum wage earner, my dream has been to improve the lives of my four children, but the wages I earn are too low for me to do that. The truth is, on my wages it is impossible to get ahead in this expensive state. Raising the minimum wage to $15 per hour for me is an issue of survival. A $15 minimum wage would mean enough food in my house at night for my family, and peace of mind that I could begin to meet all of our other needs.

Second, we call for an increase of $2.9 billion in new school aid. As a parent of four, I worry every day about my children's education, and it pains me to see them attending schools that don't have all the resources they need. Under-resourced schools like theirs are not the exception—they are the rule. We need billions of dollars in additional school aid, and it must prioritize high-needs school districts.

Third, immigrant adults need the opportunity to fully integrate themselves in their communities through adult literacy programs. I'm currently enrolled in an English class that I know will help me engage better with my children's teachers and find a better job, but too many other immigrants can't access classes because there is not enough state funding. We need $17 million in adult literacy funding in this year's budget.

On these issues and so many more, this year's budget offers an opportunity to do more for immigrant communities in desperate need. We need leaders in Albany to step up to make sure that we get our fair share.

***
Cristina Molina is a member of Make the Road New York, the largest grassroots community organization in New York offering services and organizing the immigrant community. On Twitter: @maketheroadny



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