Judicial activism with us again

Saturday June 2, 2012


The Supreme Court’s 2010 decision in the Cit i zens United case didn’t actually make corporations into people, but it did undercut the role of actual, live human beings in elections, shattering the long tradition of limiting corporate power. To quote Justice Stevens’s dissent: "A democracy cannot function effectively when its constituent members believe laws are being bought and sold."

Now we await crucial new rulings from the Court on President Obama’s Affordable Health Care Plan and others. Will these be further painful examples of conservative judicial activism by a five-man majority? Or will the American people’s great needs win out?

I am old enough to remember well a near-disastrous earlier judicial activism. In the weeks and months after his inauguration in March 1933, known as the Hundred Days, President Franklin Delano Roosevelt and his advisers in Cabinet and Congress labored to develop legislation to pull agriculture and industry out of their deep pit, with millions unemployed.

I was 11 years old. Soon after March 1933, my unemployed and newly widowed mother, an economist by training, finally found work in the new Agri cultural Adjustment Admini stra tion/Agricultural Mar ket ing Administration (AAA/ AMA), where she staffed the Consumers Counsel under Dr. Frederic Howe. Their task was to explain to the American people the new federal farm and food recovery policies. During school vacations I spent hours near her desk in the huge white Agriculture building near the Mall.

My mother was part of a so cial circle around two remarkable American legal families, those of Justice Oliver Wendell Holmes and Justice Louis Brandeis. One Sunday at the usual tea time at the Brandeis home, my mother, anxious about rumors that the Su preme Court was about to de clare the New Deal AAA un constitutional, asked Mr. Justice Brandeis: "Will I still have my job tomorrow?"


Being an honorable man, he maintained his customary reticence about Court business and wouldn’t budge. She had to read it later in the newspaper: "On January 6, 1936, the Supreme Court invalidated the AAA .... Justice Brandeis concurred in the sharp dissent by Justice [Harlan] Stone." She, along with thousands of others around the country, lost her job.

The Roosevelt administration then tried all sorts of new "tricks," even a "Court-packing" plan. Eventually the agricultural and food programs were reworked, rather than eliminated, some justices re tired and new ones were ap pointed, and our economy slowly improved.

Today we’re again at the mercy of an activist Supreme Court, split as it is between four "originalists" who "read" the Founders’ mind one way, and four justices, another, with Justice Anthony Kennedy in the middle.

Back in Federalist #78 Alex ander Hamilton wrote: "To avoid arbitrary discretion in the judges, they need to be bound down by rules and precedents." Until Citizens United, important traditions had been upheld over more than a century by justices of various philosophical leanings.

Crucial Supreme Court decisions are imminent in June that will affect the health and welfare of us all, whatever the outcome. Let us be wary of continued conservative judicial acti vism. Is that really what we Am eri cans want and need in 2012?

Janet Keep is a former Eagle


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