archive-org.com » ORG » A » AMACAD.ORG

Total: 1374

Choose link from "Titles, links and description words view":

Or switch to "Titles and links view".

  • Institutions and the Public Good Publications Overview Dædalus Journal of the Academy Bulletin Magazine of the Academy Books Research Papers Monographs and Project Publications Meetings Overview Induction 2015 Upcoming Meetings and Events Friday Forum 2015 2016 Schedule Past Meetings and Events Fellowships Overview Visiting Scholars Program Hellman Fellowship in Science and Technology Policy Policy Fellowship in the Humanities Education and the Arts Policy Fellowship in Global Security and International Affairs

    Original URL path: https://www.amacad.org/binaries/video/streamPlayer.aspx?i=487 (2016-02-13)
    Open archived version from archive


  • and International Affairs American Institutions and the Public Good Publications Overview Dædalus Journal of the Academy Bulletin Magazine of the Academy Books Research Papers Monographs and Project Publications Meetings Overview Induction 2015 Upcoming Meetings and Events Friday Forum 2015 2016 Schedule Past Meetings and Events Fellowships Overview Visiting Scholars Program Hellman Fellowship in Science and Technology Policy Policy Fellowship in the Humanities Education and the Arts Policy Fellowship in Global

    Original URL path: https://www.amacad.org/binaries/video/streamPlayer.aspx?i=488 (2016-02-13)
    Open archived version from archive

  • Foreword - American Academy of Arts & Sciences
    the Humanities Education and the Arts Policy Fellowship in Global Security and International Affairs The Exploratory Fund Member Login User Name Password Forgot your password Home Stewarding America Civic I Foreword American Democracy the Common Good Foreword Leslie C Berlowitz LESLIE C BERLOWITZ is the 45th President of the American Academy of Arts and Sciences She has been a Fellow of the American Academy since 2004 The essays in this volume were collected as part of an ongoing American Academy project Stewarding America Civic Institutions and the Public Good The project brings together leading scholars and experts to analyze the institutions that are critical for inspiring good citizenship Institutions such as Congress the courts the media the military corporations unions the nonprofit sector and the education system are held in public trust They provide a continuity of law and procedure of practice and participation and of information and knowledge from one generation to the next When they serve the short term interests of particular individuals or groups they erode public trust they erode the faith of citizens in the longest functioning constitutional democracy Several of the essays suggest ways for our government our schools and our businesses to pursue the

    Original URL path: https://www.amacad.org/content/publications/pubContent.aspx?d=1045 (2016-02-13)
    Open archived version from archive

  • Introduction - American Academy of Arts & Sciences
    is not new in America but the divisions with which we now contend have become almost tribal in nature And a new media dynamic with its own tribal divisions only accentuates the problems including a coarsened political and social culture It seems we are moving further every day from the ideal of a public square where citizens share a common set of values and facts and can debate and deliberate to find the common good How well do our institutions advance or at least protect the common good What are their appropriate roles Where do institutions fit in historical context What can be done within or outside the institutions to ameliorate the problems and restore a better balance This volume is divided into three parts The first part focuses on public institutions beginning with William Galston s look at the Preamble and the Constitution itself He dissects these founding documents relationship to the theory and practice of the common good The section then moves on to examine the larger problem of dysfunctional governance Tom Mann and I describe the erosion of our political system which was built around debate and deliberation divided powers competing with one another regular order and avenues to punish and curtail corruption Jeffrey Rosen and Geoffrey Stone next focus on manifestations of these problems in the American judiciary Rosen examines the tensions caused by a Court striving for legitimacy in an era of polarized politics when the Court itself is becoming more overtly polarized on key decisions Stone takes an even more critical look at the Roberts Court and its key decisions including Citizens United A somewhat more sanguine view follows on the military Andrew Hill Leonard Wong and Stephen Gerras write about the continuing high regard Americans feel toward their military as reverence for the military and its mission has superseded fear of military abuses in the domestic arena Still the authors note that the current balance is not guaranteed to last Kathleen Hall Jamieson then tackles the challenges of civic education an obvious means of advancing the well being of our democratic society and an obvious area of concern in an era of low voter turnout and high rates of civic ignorance The final two essays in the section focus on the lifeblood of the American democratic system political parties elections and the campaign finance system Mickey Edwards canvasses America s political landscape including primaries that pull lawmakers toward ideological poles redistricting that distorts incentives and heightens partisan divisions poisoned discourse and a disastrous system of campaign financing He highlights how all these aspects together have elevated partisanship and have diminished prospects for compromise and concern about the common good Edwards s former colleague in the House of Representatives Jim Leach then examines the Supreme Court s Citizens United decision on campaign financing filleting its reasoning and decrying its results The second part of the volume considers nonpublic institutions including corporations unions the nonprofit and philanthropic sector and journalism Ralph Gomory and Richard Sylla

    Original URL path: https://www.amacad.org/content/publications/pubContent.aspx?d=1046 (2016-02-13)
    Open archived version from archive

  • The Common Good: Theoretical Content, Practical Utility - American Academy of Arts & Sciences
    create and congregate in various shared places Some are constructed physical spaces such as streets parks and public buildings Others are technology based and virtual Still others such as the air we breathe are part of the natural environment Despite these differences they have a common attribute how we behave in these places affects everyone s ability to enjoy them over time If we carelessly leave an unextinguished fire in a campground the entire facility may go up in flames If we fail to control emissions from vehicles that use fossil fuels atmospheric pollutants can increase the incidence of asthma and other ills So the common good includes the good of the commons While these three kinds of social facts intrinsically social goods social linkages and shared places are aspects of the common good they hardly exhaust it As individuated beings our separate existences generate clashes of interests and our liberty gives rise to competing conceptions of the good These familiar differences are themselves social facts and they challenge all but the most limited understandings of the common good In the face of difference the common good is an achievement not a fact The everyday activity of bargaining illuminates some basic features of the achieved common good The animating reality of this activity is the belief that relative to the status quo some agreement would leave both parties to the negotiation better off This dyadic common good exists only potentially it takes cooperation to make it actual On some occasions there is only one possible agreement a single point of tangency between the most that A is willing to offer and the least that B is willing to accept In the vast majority of cases however there is a zone of overlap between the arrangements that could be acceptable to both Most bargaining tactics such as bluffing are designed to secure for oneself the largest possible share of the benefits of cooperation So the common good neither implies nor requires comprehensive harmony between the parties there is almost always competition within the zone of mutually beneficial cooperation In actual politics this competition often takes the form of arguments about allocating the costs of maintaining important communal activities If we agree that education is vital whose taxes will make it possible Does it make sense to rely as heavily as we now do on local communities principally through property taxes If we agree that it is important to maintain a certain level of military capabilities who will participate in the armed forces how are they to be chosen and compensated and who will be asked to pay If we go to war should there be a war tax to which everyone is asked to contribute The common good requires a balance between the benefits and burdens of social cooperation such that all or nearly all citizens believe that the contribution they are called on to make leaves them with a net surplus If they cease to believe that they will try to lighten these burdens either by evading some taxation or in extreme cases by leaving the community through exit for individuals or secession for groups It turns out that the criterion of mutual advantage is only part of what makes bar gains mutually acceptable In a famous two person experiment one person is handed ten 1 bills and is asked to divide them into two shares If the other person agrees to the division each receives his designated share if not neither gets anything One might imagine that the second party would accept any division because even a small share leaves him better off In practice not so beyond a certain point of inequality a sense of unfairness trumps the potential gain from the transaction The need for mutual consent establishes a kind of bedrock equality between the parties that spills over into and delimits the zone of acceptable agreements It is always possible that an agreement that meets the tests of fairness and mutual advantage will work to the disadvantage of those not involved in the decision In many poor communities for example gentrification benefits both developers and new incoming residents while pricing current residents out of the market Rent increases can also make it impossible for long established mom and pop businesses to survive So third parties will often appeal to a conception of the common good broadened to include them and they will resort to nonmarket mechanisms such as street protests and local governments to make sure their voices are heard This raises a question fundamental to the theory and practice of the common good how are we to define the limits of the community within which the principle of commonality applies Environmentalists argue for a global definition the consumption of fossil fuels produces externalities that affect the entire human race The long running international negotiations to produce a global compact on climate change represent an effort which may fail to reframe a zero sum conflict between developed and developing nations as the quest for mutual advantage We cannot rule out the possibility that a workable conception of the global common good will emerge from these discussions At present however the common good is typically predicated on independent political communities the kinds of entities represented in the United Nations These communities are not pre given natural facts of course they are in part human artifacts Often one part of a community will decide that a common good linking it to the rest of the community no longer exists if it ever did Successful secessionist movements redraw the boundaries of the communities within which the common good is pursued And so in reverse do successful efforts to integrate independent states into a single overarching political community The U S Constitution begins with three fateful words We the people It could have been and as dissidents such as Patrick Henry argued should have been We the states Instead the Constitution invoked and to some extent called into being a

    Original URL path: https://www.amacad.org/content/publications/pubContent.aspx?d=1052 (2016-02-13)
    Open archived version from archive

  • Finding the Common Good in an Era of Dysfunctional Governance - American Academy of Arts & Sciences
    to work and be perceived as legitimate there had to be debate and deliberation among citizens via local and national public squares and in campaigns where candidates and their partisans could press their cases and voters could weigh the viewpoints and preferences of their alternatives for representation Divided powers competing with one another America s unusual system of the separation of powers did not offer a clean and pure division between the executive legislative and judicial branches nor between the House of Representatives and Senate Instead as constitutional scholar Edward Corwin put it it was an invitation to struggle among the branches and chambers But that invitation to struggle which anticipated vibrant assertive and proud branches also was infused with the spirit of compromise as eloquently analyzed by Amy Gutmann and Dennis Thompson in this volume and in their recent book on the subject 6 A political system with separation of powers and separate elections for House Senate and president could easily have institutions at loggerheads The system and the culture supporting it required safeguards to enable the government to act when necessary and desirable without getting caught in stalemate or gridlock Regular order To make the processes work and to foster legitimacy legislative and executive procedures had to be regularized and followed This would in turn enable real debate by all lawmakers opportunity for amendments openness and reasonable transparency and some measure of timeliness Executive actions including crafting and implementing regulations to carry out policy would also require elements of transparency responsiveness to public concerns and articulated purpose Similarly judicial actions would have to allow for fairness access to legal representation opportunities for appeal and a parallel lack of arbitrariness Avenues to limit and punish corruption Public confidence in the actions of government a sense that the processes and decisions reflect fairness and enhance the common good demands that the cancer of corruption be avoided or at least constrained If small groups of special interests or wealthy individuals can skew decisions in their favor it will breed cynicism and destroy governmental legitimacy Thus it is necessary to find ways to constrain the role of money in campaigns to build transparency around campaign finance and lobbying to discourage old boy networks and revolving doors to investigate and prosecute bribery and to impeach and remove government officials who commit high crimes and misdemeanors which include corrupt behavior On all these fronts there is ample reason to be concerned about the health and function of America s current political institutions Of course no political system operates exactly as intended Politics and policy making are inherently messy occurring at the intersection of power money and ambition and leading to temptations and imperfections We have been immersed in these processes in Washington for more than forty three years and we have observed frequent governmental failures deep tensions and challenges to the political system from profound societal divisions over wars like Vietnam to the impeachment proceedings against two presidents But those challenges were modest compared to what we see today a level of political dysfunction clearly greater than at any point in our lifetimes Fundamentally the problem stems from a mismatch between America s political parties and its constitutional system For a variety of reasons all recounted in our book It s Even Worse Than It Looks How the American Constitutional System Collided With the New Politics of Extremism the two major political parties in recent decades have become increasingly homogeneous and have moved toward ideological poles 7 Combined with the phenomenon of the permanent campaign whereby political actors focus relentlessly on election concerns and not on problem solving the parties now behave more like parliamentary parties than traditional big tent and pragmatic American parties Parliamentary parties are oppositional and vehemently adversarial a formula that cannot easily work in the American political system The parliamentary mindset has been particularly striking in recent years with the Republican Party which has become in its legislative incarnation especially a radical insurgent dismissive of the legitimacy of its political opposition Of course substantial majorities in the House and Senate along with the presidency can give a majority party the opportunity to behave like a parliamentary majority But that phenomenon which occurred for Democrats in the first two years of the Obama administration resulted in major policy enactments but not a smoothly functioning political system It featured neither a widespread sense of legitimacy nor deep public satisfaction Why The processes of debate and deliberation were disrupted first by the Republicans unprecedented use of the filibuster and the threat of filibuster as purely obstructionist tools This deluge was designed to use precious floor time without any serious discussion of the reasons behind the filibusters or any real debate on differences in philosophy or policy Second when Democrats were able to pass legislation it was against the united and acrimonious opposition of the minority America s political culture does not easily accept the legitimacy of policies enacted by one party over the opposition of the other much less the continued bitter unwillingness of the minority party to accept the need to implement the policies after lawful enactment But this dynamic which accompanied the economic stimulus package in 2009 the health care reform law of 2010 and the financial regulation bill in 2010 among others resulted in greater divisions and public cynicism not less The approach of the minority party for the first two years of the Obama administration was antithetical to the ethos of compromise to solve pressing national problems The American Recovery and Reinvestment Act of 2009 a plan which included 288 billion in tax relief garnered not one vote from Republicans in the House The Affordable Care Act essentially a carbon copy of the Republican alternative to the Clinton administration s health reform plan in 1994 was uniformly opposed by Republican partisans in both houses A bipartisan plan to create a meaningful congressionally mandated commission to deal with the nation s debt problem the Gregg Conrad plan was killed on a filibuster in the Senate once President Obama endorsed the plan seven original Republican co sponsors along with Senate Republican Leader Mitch McConnell joined the filibuster to kill it McConnell s widely reported comment that his primary goal was to make Barack Obama a one term president a classic case of the permanent campaign trumping problem solving typified the political dynamic The succeeding midterm election brought a backlash against the status quo which meant divided government once Republicans captured a majority in the House of Representatives As a result the 112th Congress had the least productive set of sessions in our lifetimes enacting fewer than 250 laws more than 40 of which were concerned with naming post offices or other commemoratives 8 The major accomplishment of the 112th Congress was the debt limit debacle which marked the first time the debt limit had been used as a hostage to make other political demands The result was not just the first ever downgrade in America s credit but another blow to the public s assessment of its government s capacity to act on behalf of the common good The 2012 elections were in most respects a clear expression of public will President Obama earned reelection with a majority of popular votes as did Democrats in elections for the House and in the thirty three contests for the Senate But in the House a concentration of Democratic voters in high density urban areas contributing to a more efficient allocation of Republican voters across congressional districts and a successful partisan gerrymander in the redistricting process left Republicans with a majority of seats and hence control Despite the election the dysfunction in the policy process continued in the succeeding lame duck session of Congress as efforts to resolve America s fiscal problems before a January 1 2013 deadline were thwarted until after the deadline had passed House Speaker John Boehner was himself undermined by members of his own party when he tried to devise an alternative to the president s plan In this case a substantial share of safe House Republican seats were immune to broader public opinion and to their own Speaker but were more sensitive to threats from well financed challenges in their next primaries from the Club for Growth and other ideological organizations and to incendiary comments from radio talk show hosts and cable television commentators popular among Republican voters in their districts Tribal politics and vehement adversarialism has also led to deterioration of the regular order In recent years there have been more and more closed rules in the House denying opportunities for amendments from the minority and more uses of a majority tactic in the Senate called filling the amendment tree in which the majority leader precludes amendments usually as a way to forestall or limit the impact of filibusters There have been more omnibus bills pooling action across areas because of the increased difficulty in getting legislation enacted and fewer real conference committees to iron out differences between bills passed by each house of Congress There have been fewer budget resolutions adopted and appropriations bills passed fewer authorizations of programs and agencies and less oversight of executive action Fewer treaties have gained the two thirds vote needed for ratification in the Senate leading to more executive actions There have been more holds and delays in the Senate in executive nominations All of these pathologies lead to more acrimony inside Congress and between Congress and the executive and a diminished sense of confidence by Americans in their political and policy institutions At the same time the administration of elections has been politicized Partisan legislatures have passed stringent voter ID laws to narrow the vote several of these laws have been thrown out by courts for targeting or unfairly affecting minorities In other cases shortened voting hours and restrictions on early voting in states such as Florida and Ohio were also aimed at constraining minority voters Fortunately the 2012 election was not close had it been more like the 2000 election it is very likely that it would have further reduced public trust in the fundamentals of democratic elections The world of money and politics has also taken an alarming turn toward at least the appearance of corruption of democracy driven by big money and large interests A combination of factors the Supreme Court s Citizens United decision an appeals court decision called SpeechNow a Federal Election Commission that is unable or unwilling to enforce campaign finance laws and an Internal Revenue Service that allows the operation of faux social welfare organizations set up to influence elections but not required to disclose donors has given wealthy individuals corporations and other entities an overweening influence on elections and on the policy process If super PACs did not determine the outcome of the presidential election their impact did expand as one moved down through Senate and House elections and on to state local and judicial elections In states like Kansas North Carolina and Arkansas large donations from a handful of individuals and groups targeted moderate Republicans and replaced them with reactionary conservatives creating more division and polarization not to mention politicians beholden to those whose money put them in power Organizations such as the American Legislative Exchange Council ALEC have used large and often anonymous contributions from corporations and individuals to write laws including the voter ID laws and laws favoring the corporate sector that many state legislatures have simply enacted as written obviating their independent role And inside Congress many lawmakers have told us about the intimidating effect that occurs when a lobbyist tells them that if they do not support a bill or amendment they might face a multimillion dollar independent attack days or weeks before the election which they will be unable to counter due to a lack of time or fundraising limitations Such threats can result in the passage of bills or amendments without any money even being spent By any reasonable standard this is corruption All of this exhibits a level of dysfunction in American political institutions and processes that is dangerous to the fundamental legitimacy of decisions made by policy makers not to mention the ability of those policy makers to act at all Tribal politics at the national level has metastasized to many states and localities and has affected the broader public as well The glue that binds Americans together is in danger of eroding What can be done about these problems There is no easy answer no panacea The problems are as much cultural as structural But if structural change inside and outside Washington cannot solve the problems it can ameliorate them and perhaps also begin to change the culture One strategy for structural change is to accept the emergence of parliamentary style polarized parties and try to adapt our political institutions to operate more effectively in that context This is easier said than done Eliminating or constraining the Senate filibuster would give unified party governments a better shot at putting their campaign promises into law 9 But separate elections for the presidency and Congress as well as the midterm congressional elections often conspire to produce divided party government which has become more a basis of parliamentary opposition and obstruction than consensus building and compromise Shifting more power to the presidency which is already under way may produce more timely and coherent policies but at a considerable cost to deliberation representation and democratic accountability A president is of course elected by the entire nation Especially on national security issues Americans are willing to tolerate and even embrace many unilateral presidential actions think Grenada and Abbottabad But America s political culture has ingrained in the public a sense that legitimate policies more often call for some form of broad leadership consensus and institutional buy in A series of unilateral actions by the president would not necessarily result in public acceptance of the decisions as being made for the common good The same can be said for other forms of delegation from Congress to fed like independent agencies or boards that encourage more expert and evidence based decision making that is at least somewhat removed from the clash of polarized parties Each of these ideas has some limited promise but none can be the basis of constructively reconciling a fundamental mismatch between parliamentary like political parties and the American constitutional system Another approach emphasizes trying to bring the warring parties together by reaching for consensus through increased social interaction the House experiment with civility retreats encouragement of or pressure on politicians to come together to make a deal Fix the Debt the mobilization of centrists in the citizenry to create political space for more collegial and collaborative policy making No Labels the use of outside bipartisan groups to map policy solutions that split the differences between the polarized parties Committee for a Responsible Federal Budget and the support of independent presidential candidates or third parties to lay claim to the allegedly abandoned political center Americans Elect These efforts by and large seek to create a spirit of compromise an atmosphere of civility and mutual respect and a focus on problem solving outcomes which are indeed commendable But we believe that these well intentioned efforts are limited by the strength and reach of party polarization which is buttressed not only by genuine ideological differences among elected officials but also by like minded citizens clustered in safe districts committed activists a partisan media a tribal culture interest groups increasingly segregated by party a party based campaign funding system that now encompasses allegedly independent groups and a degree of parity in party strength that turns legislating into strategic political campaigning Most of these efforts also suffer from an unwillingness to acknowledge the striking asymmetry between today s political parties which in the process gives a pass to obstructionist and dysfunctional behavior A more promising strategy of reform is to bring the Republican Party back into the mainstream of American politics and policy as the conservative not radical force Ultimately this is the responsibility of the citizenry Nothing is as persuasive to a wayward party as a clear message from the voters The 2012 election results and the widespread speculation of the diminishing prospects of the Republican coalition in presidential elections may be the start of that process But it can be boosted and accelerated by the groups discussed above speaking clearly and forthrightly about the damage caused to constructive public policy by tax pledges debt limit hostage taking the abuse of the filibuster climate change denial the demonization of government and ideological zealotry The mainstream press could also do its part by shedding its convention of balancing the conflicting arguments between the two parties at the cost of obscuring the reality Voters cannot do their job holding parties and representatives accountable if they do not have the necessary information Some in the media think it is biased or unprofessional to discuss the many manifestations of our asymmetric polarization We think it is simply a matter of collecting the evidence and telling the truth More significant for both parties would be to enlarge the electorate to dilute the overweening influence of narrow ideologically driven partisan bases that dominate party primaries As a result these bases have an outsized role in choosing candidates who often do not reflect the views of their broader constituencies and as a means of heading off primary challenges the bases can intimidate lawmakers searching for compromise or a common good into moving away from solutions Meanwhile the enlarged influence of party bases pushes campaign operatives and candidates away from broader appeals and toward strategies to turn out one s own base often by scaring them to death and to suppress the other side s base The politics of division trump the politics of unity To counter this set of problems we propose adoption of the Australian system of mandatory attendance at the polls where voters who do not show up they do not have to vote

    Original URL path: https://www.amacad.org/content/publications/pubContent.aspx?d=1057 (2016-02-13)
    Open archived version from archive

  • Can the Judicial Branch be a Steward in a Polarized Democracy? - American Academy of Arts & Sciences
    sweeping abstractions to narrow legalisms As a result decisions like Citizens United are more likely to include incendiary generalizations about the constitutional personhood of corporations than they were when Sandra Day O Connor a more incremental and politically pragmatic judge controlled the balance of the Court But Justice Kennedy cannot be blamed for the most salient symptom of polarization on the Roberts Court the fact that the conservative justices are more conservative than their predecessors The Roberts Court issued conservative decisions 58 percent of the time in its first five years compared to a rate of 55 percent for the courts led by Chief Justices Warren E Burger and William Rehnquist and only 34 percent for the Court led by Chief Justice Earl Warren The Roberts Court also has issued conservative opinions in 71 percent of ideologically divided cases as op posed to less than half the time in the final years of the Rehnquist Court 9 To some degree these differences simply reflect a change in the numbers of conservative versus liberal justices the Roberts Court is not striking down laws or overturning precedents at a higher rate than its predecessors But in another sense the willingness of the Roberts Court to issue polarizing decisions by narrowly divided votes reveals a decline in the culture of bipartisanship on the Court To be sure this is not a culture that has prevailed for much of the Court s history As Chief Justice Roberts told me It s sobering to think of the seventeen chief justices Certainly a solid majority of them have to be characterized as failures in terms of their ability to promote consensus and unanimity 10 After the comity of the early Marshall era there have been many periods when the justices have divided along partisan lines and openly squabbled perhaps most notably in the period before and immediately after the New Deal The Court struck down the core of Franklin Roosevelt s recovery program by closely divided votes and after stepping back from the brink continued to indulge in personal and ideological vendettas Justices Hugo Black and Robert Jackson sniped openly at each other and Chief Justice Fred Vinson once nearly punched Justice Felix Frankfurter in the nose By the 1950s however Chief Justice Warren s leadership of the Court was characterized by a sense of stewardship a belief that the common good would suffer if momentous decisions were made along ideological lines Under Chief Justice Vinson the Court had tentatively voted to uphold school segregation But after the case was set for reargument Vinson suddenly died prompting Justice Frankfurter to remark This is the first indication I have ever had that there is a God After Warren replaced Vinson the Court voted tentatively to strike down school segregation in Brown v Board of Education Warren then famously lobbied his skeptical colleagues and persuaded them to make the decision unanimously It would be bad for the Court he told the last holdout Stanley Reed for the decision to be made over a single dissent Out of deference to Warren s leadership Justice Reed agreed and when Warren read the decision to a spellbound courtroom Thurgood Marshall the lawyer for the NAACP Legal Defense Fund looked up at Reed in astonishment and gratitude Despite his reputation as the head of a liberal court moreover Warren viewed the Court under his leadership as a partner of Congress and the president rather than an adversary and he rarely made decisions that the other branches of the federal government strenuously resisted 11 Warren himself was a former politician a former GOP presidential and vice presidential candidate who had also been an elected county prosecutor state attorney general and governor of California where he had a reputation for working with Democrats in the state legislature Indeed a majority of the justices who decided Brown came from a political background including two former senators Harold Burton and Hugo Black two former attorneys general Tom Clark and Robert Jackson a former head of the Securities and Exchange Commission William O Douglas and one former judge who had also served as a senator Sherman Minton On the court today by contrast there are no former politicians and eight former federal judges Even if the current Court contained more politicians it could hardly reconstruct the sense of stewardship that prevailed in the Warren era That s because the nature of politics has changed dramatically since the 1950s as both the House and the Sen ate have become much more polarized and less susceptible to bipartisan compromise The causes of this polarization have been extensively discussed changes in media technology have surely contributed for example but one of the most salient causes is the growth of partisan gerrymandering In the 1950s a candidate who won a primary election by appealing to his base had an incentive to move to the center in the general election in order to win over undecided voters in a closely divided district But once partisan gerrymandering increasingly ensured safe seats for the winners of primary elections candidates instead had an incentive to move hard left or hard right to win the primary Partisan gerrymandering explains much of the polarization of the House of Representatives and because many senators now come from the House it has contributed to polarization in the Senate as well As politics in general have become more polarized since the Warren era judicial politics too have become polarized The collapse of the center in Congress has made judicial confirmation a bruising process and has guaranteed that those who get nominated and confirmed are farther than ever from the judicial center It is also impossible to ignore the role of interest groups that sprung up in the wake of Roe v Wade Roe was decided in 1973 and by the 1980s interest groups emerged on both sides of the political spectrum dedicated to the goal of either overturning Roe or preserving it These interest groups helped turn every Supreme Court confirmation hearing since the unsuccessful nomination of Robert Bork in 1986 into a referendum on the rightness or wrongness of Roe This litmus test in turn led presidents of both parties to choose nominees for their ideological reliability above all Republican nominees had to commit to overturning Roe while Democrats had to commit to upholding it It took several judicial nominations for this strategy of ideological polarization to become well established David Souter and Anthony Kennedy ended up affirming Roe rather than repudiating it But galvanized by a No more Souters battle cry President George W Bush appointed two justices Roberts and Alito who have proved to be reliably conservative votes disinclined to moderate their views in order to meet their liberal colleagues halfway Thus the ideological hardening of the Court like that of Congress seems to be increasingly entrenched This problem is not limited to the conservative wing of the Court As the stakes in judicial battles have grown both Democratic and Republican presidents have put greater emphasis on ideological reliability than they did in the 1950s when the Court was a place to reward political allies or opponents rather than a perceived battleground for the culture wars And as justices have become ideologically less flexible so have their law clerks Perhaps the most telling sign of judicial polarization is the fact that liberal justices are now far more likely than they were in the past to hire law clerks who worked for judges appointed by Democrats and Republican justices are more likely than their predecessors to hire clerks who worked for judges appointed by Republicans 12 Clerks are vetted for their ideological reliability by a screening system that begins in law school where they are expected to declare their political allegiances by joining either the Federalist Society or the American Constitution Society the system continues by securing clerkship with ideologically identified appellate judges who are considered feeders for Supreme Court clerkships As a result the prospect of clerks who will challenge their justices ideological preconceptions rather than encouraging them becomes increasingly remote The polarization of the nominations process and of the Court itself has led to more strident attacks on judicial independence in the political arena As politicians on both sides no longer have faith in the Court to provide neutral justice they are willing to attack the justices in political terms The rhetorical attacks on judges which became especially pronounced after the Terry Schiavo controversy in 2005 culminated in the Republican presidential primaries of 2011 in which nearly all the major candidates sharply questioned judicial power From Texas Governor Rick Perry who called for term limits for Supreme Court justices to former Speaker of the House Newt Gingrich who proposed abolishing the U S Court of Appeals for the Ninth Circuit 13 the candidates used anti judicial rhetoric more shrill than we have heard since the Progressive Era Together with Gingrich candidates Michele Bachmann a U S representative from Minnesota and Herman Cain a business executive went so far as to say they would sign a federal ban on abortion in direct contradiction of Roe v Wade intentionally provoking a constitutional crisis 14 During the 2012 campaign Gingrich offered the most extreme attacks along these lines calling on Congress to subpoena judges and force them to explain their rulings under threat of arrest But if Gingrich s judge bashing was extreme it was by no means an isolated phenomenon More than at any point in recent American history judge bashing is now an accepted part of both conservative and liberal discourse If we are not careful we may slide toward a future in which neither liberals nor conservatives are willing to accept the legitimacy of judicial opinions with which they disagree Until recently in the post Warren Court era Republican presidential candidates were more extreme in their attacks on judges than Democrats In the 1996 presidential campaign for example Pat Buchanan gave a speech called Ending Judicial Dictatorship that presaged many of the ideas of Gingrich s white paper Bringing the Courts Back Under the Constitution Buchanan s speech was ghostwritten by William J Quirk a law professor at the University of South Carolina and coauthor of the 1995 book Judicial Dictatorship In the book and in the speech Quirk as channeled by Buchanan quoted from Thomas Jefferson s writings questioning the wisdom of judicial review and endorsed Theodore Roosevelt s Progressive Era proposal to allow the people to overrule judicial decisions by popular vote Although Gingrich quoted some of the same Jeffersonian passages as Buchanan his 2011 white paper on the judiciary includes some surprising sources that were not available in 1996 articles by liberal scholars questioning judicial supremacy In the past decade there has been an explosion of books and articles by liberals on popular constitutionalism led by former dean of Stanford Law School Larry Kramer whose 2004 book The People Themselves Gingrich quotes extensively and sympathetically Of course many liberal popular constitutionalists question judicial supremacy that is the claim that judges alone have the right to interpret the Constitution without endorsing Gingrich s extreme attacks on judicial independence such as his claim that the president should ignore Supreme Court decisions with which he disagrees Popular constitutionalism is a provocative movement of which I m a card carrying member Regardless of whether you think the courts should thwart the deeply felt constitutional views of the people it is hard to deny that on the rare occasions when they have done so they have often provoked popular backlashes followed by judicial retreats The problem is that the rise of liberal popular constitutionalism has coincided with the rise of a political and media culture in which partisan attacks on individual judges are multiplying As a result popular constitutionalists criticism of judges for second guessing democratic decisions is increasingly showing up in the political arena where it sometimes takes the form of reasonable critiques of judicial overreach sometimes takes the form of anti judge demagoguery and sometimes treads a fine line between the two Recently for example Michele Bachmann took to RedState com after Justice Ruth Bader Ginsburg recommended that post Hosni Mubarak Egypt use the South African constitution as a model rather than the much older U S one Unfortunately Supreme Court Justice Ruth Bader Ginsburg doesn t believe in the importance of the U S Constitution Bachmann wrote Figuring out where to draw the line between criticism and demagoguery is not easy Sometimes the line is clearly crossed as with Gingrich s claim that if the court makes a fundamentally wrong decision the president can in fact ignore it In other cases the boundary is harder to discern Consider President Obama s 2010 State of the Union address in which he challenged the Court s Citizens United decision while six of the justices sat in front of him With all due deference to separation of powers he said last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests including foreign corporations to spend without limit in our elections Chief Justice Roberts clearly believed that some kind of protocol had been violated I think anybody can criticize the Supreme Court but there is the issue of the setting the circumstances and the decorum Did Obama go too far as Roberts suggested I don t think so Our greatest presidents have criticized the Court including Abraham Lincoln and Franklin Roosevelt who did so during his 1937 State of the Union address And Obama was careful to acknowledge all due deference to separation of powers before launching into his attack like Lincoln and Roosevelt but unlike Gingrich he was making clear that he would obey the decision with which he disagreed But if Obama s criticism of Citizens United was legitimate others on the left have made more troubling arguments I hope Anthony Kennedy is happy wrote political commentator Elie Mystal in a post at Above the Law a widely read legal blog P oint out to me a Supreme Court justice who didn t know the Citizens United ruling would disproportionately favor Republicans and I ll point to a liar This is a dramatic allegation that seems intended to delegitimize the Court Kennedy s ruling may have been naive but in the absence of evidence to the contrary one must assume it was offered in good faith Some liberal politicians have been similarly extreme In 2010 Democratic Representative Peter DeFazio of Oregon said that he was investigating articles of impeachment against Justice Roberts for perjuring during his Senate hearings where he said he wouldn t be a judicial activist and he wouldn t overturn precedents Last year Democratic Representative Chris Murphy of Connecticut outraged about Justice Clarence Thomas s ties to conservative donors argued that there should start to be some real investigations as to whether he can continue to serve as a justice on the Supreme Court Meanwhile the most prominent critic of Citizens United has been comedian and political satirist Stephen Colbert His central stunt setting up his own super PAC has been funny and illuminating a clever way of highlighting the ruling s drawbacks But the limits of his approach were clear during his recent interview with retired Justice John Paul Stevens who wrote the greatest dissent of his career in Citizens United Instead of allowing Stevens to explain his reasoning Colbert mocked the 91 year old justice and cut off his answers When asked whether he regretted any decision in his long career Stevens gamely joked Other than this interview Colbert s attack on the Court works brilliantly as comedy but by blurring the line between entertainment and constitutional criticism he is arguably both parodying and exacerbating the climate of judge bashing Of course judges on both the left and the right have contributed to the current situation by unnecessarily interfering in political debates and by issuing polarizing decisions on the most contested questions of American life by ideologically divided votes But not all judges succumb to this temptation in the health care cases two of the most respected conservative appellate court judges in the country Jeffrey Sutton and Lawrence Silberman upheld the health care reform without hesitation setting the stage for Chief Justice Roberts s career defining decision to uphold the law as well And there are many occasions when the Supreme Court and lower courts defy ideological predictions and rule against type Chief Justice Roberts persuaded all his colleagues to join him in a narrow nearly unanimous decision upholding the 2006 amendments to the Voting Rights Act despite widespread expectations that the Court would strike down the amendments on a 5 4 vote 15 And following the lead of a bipartisan panel of the D C Circuit the Supreme Court unanimously rejected the position that we have no expectations of privacy in public and voted to ban the police from attaching a GPS device to the bottom of a suspect s car without a valid warrant and tracking his every move for a month But because as Chief Justice Roberts has noted ideologically divided decisions receive far more attention than ideologically unexpected or unanimous ones a few cases like Citizens United may create the impression among citizens that the courts are more polarized than they actually are Are ideologically divided decisions in fact harmful to the legitimacy of the Court as Chief Justice Roberts has suggested Possibly not the Court s legitimacy may turn less on whether its decisions are bipartisan than on whether the public generally agrees with the handful of decisions that catch its attention As long as the Roberts Court remains broadly within the mainstream of public opinion as it has done on questions like partial birth abortion law and order affirmative action and even the health care mandate then perhaps it can issue a handful of unpopular decisions such as Citizens United without significantly diminishing its legitimacy Nevertheless the Court s approval rating seems to be falling under

    Original URL path: https://www.amacad.org/content/publications/pubContent.aspx?d=1058 (2016-02-13)
    Open archived version from archive

  • The Supreme Court in the 21st Century - American Academy of Arts & Sciences
    process for terrorism suspects takings of private property the death penalty the free speech rights of corporations freedom of religion the rights of gays and lesbians and the commerce clause 12 The moderately liberal justices voted for what would generally be understood as the more liberal political position 97 percent of the time seventy of seventy two votes Justice Stevens joined the conservative justices in one of the Guantánamo cases and in a voting case The very conservative justices voted for the politically conservative position 98 percent of the time fifty nine of sixty votes Chief Justice Roberts broke ranks in the Affordable Care Act decision Based on these votes it is easy to see why both the public and members of the Senate perceive the justices as both ideological and polarized The all important swing justices by the way voted two thirds of the time with the very conservative justices 13 With this information it is easy to see why the public is suspicious of the justices and why the stakes in the nomination and confirmation process are so high Indeed if one more moderately liberal justice had been on the Court since 2000 in lieu of one of the very conservative justices the moderately liberal justices would have won seventeen of the eighteen cases 14 If one more very conservative justice had been on the Court in place of one of the moderately liberal justices the very conservative justices would have won sixteen of the eighteen cases 15 Citizens United v Federal Election Commission 16 is a useful example of how the conservative justices have played fast and loose with the law in order to reach the outcomes they prefer In Citizens United the Court in a 5 4 decision held unconstitutional a key provision of the Bipartisan Campaign Reform Act of 2002 BCRA 17 The specific provision the Court invalidated limited the amount of money that corporations could spend in certain circumstances to support or oppose the election of named candidates for federal office 18 To understand Citizens United it is first necessary to establish the constitutional context of the decision In 1976 in Buckley v Valeo 19 the Supreme Court struck down several provisions of the Federal Election Campaign Act of 1971 20 In a key part of the decision the Court held in Buckley that the government cannot constitutionally limit the amount individuals can spend to support or oppose the election of political candidates The Court reasoned that because expenditure limitations limit political expression at the core of our electoral process and of the First Amendment freedoms they cannot withstand First Amendment scrutiny 21 The question later arose whether corporations have the same First Amendment rights as individuals to spend unlimited amounts of money in the electoral process In 1990 the Supreme Court held in Austin v Michigan Chamber of Commerce 22 that corporations do not have the same right in this respect as individuals In a 6 3 decision the Court upheld a Michigan statute that limited the amount that corporations could spend to support or oppose the election of candidates for state office The Court explained that the unique legal and economic characteristics of corporations such as limited liability perpetual life and favorable treatment of the accumulation and distribution of assets enable corporations to use resources amassed in the economic marketplace to obtain an unfair advantage in the political marketplace 23 Noting that the act was designed to deal with the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public s support for the corporation s political ideas the Court concluded that the State has articulated a sufficiently compelling rationale to support its restriction on independent expenditures by corporations 24 The Court adhered to this view for the next twenty years In 2003 for example in McConnell v Federal Election Commission 25 the Court upheld the same provision of the BCRA that it later invalidated in Citizens United In McConnell in a 5 4 decision the Court followed Austin and held that the provision of the 2002 legislation that limited the amount that corporations could spend in the political process did not violate the First Amendment The Court reaffirmed that government s power to prohibit corporations from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates has been firmly embedded in our law 26 In the seven years between McConnell and Citizens United it became clear that the positions of the justices on this question were fixed in stone Beginning with Austin Justices Scalia Kennedy and Thomas voted consistently in dissent to protect what they saw as the First Amendment rights of corporations without regard to precedent and after joining the Court in 2005 and 2006 respectively Chief Justice Roberts and Justice Alito quickly made clear that they too were in that camp 27 As legal expert Lillian BeVier astutely observed at the time D ebate on these issues has reached an impasse The chasm that separates the Justices from one another appears unbridgeable 28 Sure enough in Citizens United the Court overruled Austin and McConnell in a 5 4 decision It held that corporations like individuals have a First Amendment right to spend unlimited funds in order to elect or defeat particular political candidates The five justices in the majority were Roberts Scalia Kennedy Thomas and Alito The only relevant change in the seven years since McConnell was that the moderately conservative Justice O Connor who had voted with the majority in McConnell had been replaced by the very conservative Justice Alito 29 Justice Kennedy who wrote the opinion of the Court in Citizens United reiterated the arguments of the dissenters in the earlier cases declaring for example that even though corporations are granted special powers and prerogatives to enable them to function efficiently as economic entities i t is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights 30 and that corporations should not be treated differently under the First Amendment simply because they are not natural persons 31 Citizens United has been criticized on a variety of grounds The most interesting criticisms suggest not only that the majority was wrong on the merits of the First Amendment issue but also that the conservative justices behaved disingenuously in their handling of the case There are at least three reasons for this accusation First there is the issue of precedent In theory at least conservative judges claim to be respectful of stare decisis Indeed that is part of what it has traditionally meant to be conservative Yet in this instance there were two definitive decisions of the Supreme Court in the twenty years leading up to Citizens United Austin and McConnell in which the Court had held unequivocally that government can constitutionally limit corporate political expenditures The plain and simple fact is that nothing had changed in the intervening years except the makeup of the Court itself Second there is the issue of judicial overreaching Both Citizens United and the solicitor general offered the Court several ways to resolve the case in favor of Citizens United without requiring the Court even to consider the continuing vitality of Austin and McConnell 32 Traditionally conservatives have insisted that courts should resolve constitutional controversies on narrow rather than broad grounds and should avoiding holding laws unconstitutional unless there is no other way to dispose of the case In Citizens United however the conservative justices eschewed the narrow grounds of decision that were available to it and actually ordered the parties to file briefs on the much broader and more controversial question of whether Austin and McConnell should be overruled Because this sort of aggressive overreaching has traditionally been disdained by conservatives the Court s performance in Citizens United was fair and easy game for those who condemned the majority s evident eagerness to reach out unnecessarily to pronounce the limit on corporate spending unconstitutional Third there is the question of judicial activism versus judicial restraint This is for me the most intriguing facet of the decision in Citizens United How should courts decide how much deference how much scrutiny is appropriate in considering the constitutionality of government action That is the central question of American constitutional law at least insofar as courts are concerned In the last half century conservatives have derided judicial activism as illegitimate and called for a more restrained exercise of the power of judicial review In Citizens United however the conservative majority embraced an aggressively activist approach disregarding an effort by our nation s elected officials to bring order to what they regarded as a dangerously out of control electoral process The stakes were clearly high and members of Congress and the president Bush II by the way obviously have a high degree of expertise in such matters Why then didn t the conservative justices exercise restraint and defer to the judgment of our elected leaders This is the question to which I now turn It is often assumed that liberals like judicial activism and conservatives like judicial restraint It is not so simple For one thing judicial activism and judicial restraint do not necessarily correlate with liberal and conservative outcomes For example on such questions as the constitutionality of affirmative action regulations of commercial advertising gun control laws and campaign finance regulation judicial restraint would lead to politically liberal results upholding the laws and judicial activism would produce politically conservative results invalidating the laws Not surprisingly then at some times in our history judicial activism has been embraced by conservatives and criticized by liberals and at other times judicial activism has been embraced by liberals and criticized by conservatives In the early years of the twentieth century for example conservative justices employed an aggressive form of judicial activism to invalidate a broad range of progressive legislation During the Lochner era 33 which lasted for some forty years 34 the Supreme Court invoked economic substantive due process in the name of protecting the liberty of contract to invalidate more than 150 state and federal laws regulating such matters as child labor the insurance industry banks minimum wages maximum hours the rights of labor and the transportation industry 35 Progressive critics of the Lochner era jurisprudence like Felix Frankfurter concluded that judicial activism was presumptively illegitimate and unwarranted The only principled stance for a responsible justice he argued was judicial restraint 36 Other critics of Lochner however took away a very different lesson In their view Lochner was wrong not because judicial activism is wrong but because Lochner was not an appropriate situation for judicial activism It was this view that Chief Justice Harlan Fiske Stone set forth in 1938 in his famous footnote 4 in United States v Carolene Products Co 37 While burying the doctrine of economic substantive due process Stone at the same time suggested that there may be narrower scope for operation of the presumption of constitutionality when legislation restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation or when it discriminates against discrete and insular minorities in circumstances in which it is reasonable to infer that prejudice intolerance or indifference might seriously have curtailed the operation of those political processes ordinarily to be relied upon to protect minorities 38 This conception of selective judicial activism is deeply rooted in the original understanding of the essential purpose of judicial review in our system of constitutional governance The framers of our Constitution wrestled with the problem of how to cabin the dangers of overbearing and intolerant majorities For example those who initially opposed a bill of rights argued that a list of rights would serve little if any practical purpose for in a self governing society the majority could simply disregard whatever rights might be guaranteed in the Constitution In the face of strenuous objections from the Anti Federalists during the ratification debates however it became necessary to reconsider the issue On December 20 1787 Thomas Jefferson wrote James Madison from Paris that after reviewing the proposed Constitution he regretted the omission of a bill of rights 39 In response Madison expressed doubt that a bill of rights would provide any check on the passions and interests of the popular majorities He maintained that experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed Repeated violations of these parchment barriers have been committed by overbearing majorities in every State that already had a bill of rights In such circumstances he asked What use can a bill of rights serve in popular Governments 40 Jefferson replied Your thoughts on the subject of the Declaration of rights fail to address one consideration which has great weight with me the legal check which it puts into the hands of the judiciary This is a body which if rendered independent merits great confidence for their learning and integrity 41 This exchange apparently carried some weight with Madison On June 8 1789 Madison proposed a bill of rights to the House of Representatives At the outset he reminded his colleagues that the greatest danger to liberty was found in the body of the people operating by the majority against the minority 42 Echoing Jefferson s letter he stated the position for judicial review contending that if these rights are incorporated into the constitution independent tribunals of justice will consider themselves the guardians of those rights they will be an impenetrable bulwark against every assumption of power in the legislative or executive they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights 43 This reliance on judges whose lifetime tenure would hopefully insulate them from the need to curry favor with the governing majority was central to the framers understanding Alexander Hamilton for example strongly endorsed judicial review as obvious and uncontroversial The independence of the judges he reasoned is requisite to guard the constitution and the rights of individuals from the effects of those ill humours which sometimes disseminate among the people themselves Judges he insisted have a duty to resist invasions of constitutional rights even if they are instigated by the major voice of the community 44 It was this originalist conception of judicial review that informed the Warren Court s selective judicial activism as well as the approach of the moderate liberals who are currently on the Court As a rule the Warren Court gave a great deal of deference to the elected branches of government except when such deference would effectively abdicate the responsibility the framers had imposed upon the judiciary to serve as an essential check against the inherent dangers of democratic majoritarianism They therefore invoked activist judicial review primarily in two situations 1 when the governing majority systematically disregarded the interests of a historically underrepresented group such as blacks ethnic minorities political dissidents religious dissenters and persons accused of crime and 2 when there was a risk that a governing majority was using its authority to stifle its critics entrench the political status quo and or perpetuate its own political power Consider for example Brown v Board of Education 45 which prohibited racial segregation in public schools Loving v Virginia 46 which invalidated laws forbidding interracial marriage Engel v Vitale 47 which prohibited school prayer Goldberg v Kelly 48 which guaranteed a hearing before an individual s welfare benefits could be terminated Reynolds v Sims 49 which guaranteed one person one vote Miranda v Arizona 50 which gave effect to the prohibition of compelled self incrimination Gideon v Wainwright 51 which guaranteed all persons accused of crime the right to effective assistance of counsel New York Times v Sullivan 52 which limited the ability of public officials to use libel actions to silence their critics and Elfbrandt v Russell 53 which protected the First Amendment rights of members of the Communist Party Each of these decisions clearly reflected the central purpose of judicial review to guard against the distinctive dangers of majoritarian abuse As I noted at the outset of this essay anti majoritarian decisions generally do not sit well with the majority It is therefore hardly surprising that this jurisprudence excited biting criticism especially in the political arena By the late 1960s Richard Nixon was able to make the Court s judicial activism a significant issue in national politics Within a few short years Nixon appointed Warren Burger Harry Blackmun Lewis Powell and William Rehnquist to the Court Although these justices varied over time in their adherence to judicial restraint their presence soon transformed the Court leaving the vision of the Warren Court in its wake The change in the Court s understanding of its role since 1968 has been dramatic In the twenty five years between 1968 and 1993 Republican presidents made twelve consecutive appointments to the Court The movement to the right continued under George W Bush who appointed the very conservative Samuel Alito to replace the moderately conservative Sandra Day O Connor But that still leaves the question what does conservative mean in the modern era This brings me back to Citizens United If conservative justices adhered to the judicial restraint conception of judicial review they would surely have upheld the law at issue in Citizens United Only by invoking a high degree of judicial scrutiny and aggressively second guessing the judgments of Congress and the president could the conservative justices justify their position in Citizens United How then could the five conservative justices have invalidated the challenged law in Citizens United The answer is simple John Roberts Antonin Scalia Anthony Kennedy Clarence Thomas and Samuel Alito are not committed to judicial restraint Rather like the liberal justices of the Warren Court they employ a form of selective judicial activism But these justices would have joined few if any of the

    Original URL path: https://www.amacad.org/content/publications/pubContent.aspx?d=1063 (2016-02-13)
    Open archived version from archive



  •