Gotham Gazette https://www.gothamgazette.com/component/tags/tag/765 Fri, 28 Feb 2020 01:42:53 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) As Teddy Roosevelt Did, 2016 Candidates Drag the Supreme Court Into Presidential Politics https://www.gothamgazette.com/130-opinion/6209-as-teddy-roosevelt-did-2016-candidates-drag-the-supreme-court-into-presidential-politics https://www.gothamgazette.com/130-opinion/6209-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.

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As Teddy Roosevelt Did, 2016 Candidates Drag the Supreme Court Into Presidential Politics Sun, 06 Mar 2016 21:05:42 +0000
The Wisdom of Primaries https://www.gothamgazette.com/130-opinion/6105-the-wisdom-of-primaries https://www.gothamgazette.com/130-opinion/6105-the-wisdom-of-primaries teachout fracktivists

Zephyr Teachout, in yellow, with "fractivists" (photo: @zephyrteachout)


In her zeal to attach herself to Barack Obama at the recent Democratic debate in Charleston, Hillary Clinton at one point issued a somewhat unexpected line of attack. In advance of the 2012 campaign, Clinton charged, Bernie Sanders had "publicly sought someone to run in a primary against President Obama." 

There's no disputing that Sanders did in fact express such a position, based on his concern that Obama was moving to the right during his first term. But during the debate on Twitter and later that evening on CNN, Obama's chief strategist David Axelrod echoed Clinton's disdain for Sanders' view that a primary might be good for the party.

Notably, neither Clinton nor Axelrod deemed it necessary to explain why in their view, such a challenge would have been a bad thing. Here in New York, meanwhile, we've seen quite clearly the positive benefits of making an incumbent answer to his party's base.

In 2014, Zephyr Teachout bucked the leadership of both the state Democratic Party and the Working Families Party by running a primary challenge against Andrew Cuomo. Though outspent by an astronomical sum, Teachout won the same number of counties as the sitting governor. Cuomo's healthy margin of victory (62-34%) came mainly because of the vote in New York City and Buffalo.

Although weakened by a novice candidate, the legendarily vindictive Cuomo has actually sought to make amends with the constituencies that did not support him in the primary.

First he surprised many upstate activists by banning fracking. Over the past year, he has responded to the teachers unions and public school parents by withdrawing his support for the Common Core (an issue central to Rob Astorino's unsuccessful Republican bid in the general election). And Cuomo has patched up his ties with Working Families Party unions by pushing for a $15 minimum wage and paid family leave.

Ethics reformers—another Teachout constituency—are still holding their breath. Even as the cloud of suspicion cast over by Cuomo by Preet Bharara hovered, the governor paid only lip service to changing the rules in Albany. For example, despite his stated support for closing the LLC loophole, he continued to rake in donations from big real estate developers. Bharara's investigation thus can't be credited with forcing Cuomo to shift gears.

Nor does Cuomo's sandbox sparring with Mayor de Blasio sufficiently explain the governor's leftward lurch. After all, de Blasio campaigned for Cuomo in 2014, and the latter remains the more popular of the two figures in citywide polling.

In short, absent the primary contest that allowed voters across the state to express various disagreements, Cuomo most likely have would have remained on the centrist course of his first term.

Because there no was primary challenge to Obama in 2012, it would be pure speculation to say that a meaningful challenge from the left would have forced him to move in that direction. But in his second term, Obama hasn't offered up any significant new domestic policy initiatives, suggesting that he's not terribly worried about what the activist wing of the party thinks about his presidency.

Here in New York City, it's unclear whether any candidate will wage a primary contest against Mayor de Blasio next year. But those on the left unhappy with the mayor's caution on police reform and closing Rikers, or coziness with developers, might welcome it. So, too, might more centrist voters concerned about the mayor's management of the homeless problem or the budget implications of his deals with unions.

Regardless of whether a strong contender enters the ring, this much is clear: Always be wary of politicians or pundits who argue that more democracy is not a good thing.

***
Theodore Hamm is chair of journalism and new media studies at St. Joseph's College in Clinton Hill, Brooklyn. On Twitter @HammerDaily.

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The Wisdom of Primaries Thu, 21 Jan 2016 01:57:13 +0000