In a classic “Doonesbury” cartoon from July 1973, the chief justice of the U.S. prefaces the reading of an opinion with these words: “Well, we’ve been conferring like crazy, and I think we have got ourselves another snappy 5-4 decision.” And, lo, here we are, almost exactly 40 years later, at the end of yet another Supreme Court term full of snappy — and controversial — 5-4 decisions.
We’re accustomed to following the court closely, as if the course of the world’s future is determined every time the justices, from the mysterious peak of their Capitol Hill Olympus, toss down one of their constitutional thunderbolts. We take surveys on how people want the court’s more controversial decisions to come out — a strange exercise in a country where more Americans can correctly name the Three Stooges than the three branches of government.
And when a vacancy occurs, of course, activists on the left and the right gear up for a huge bloodletting. The terms are Manichean: All that is good and right and fair and true in the world is at stake. If the bad guys get another of their wicked functionaries on the court, then all of the snappy 5-4 decisions we’ve won will become 5-4 the other way; those where we’ve lost will suddenly be 6-3. And justice will be delayed, and the mountains will fall.
To be sure, the Supreme Court is important. But it’s possible to exaggerate its ability to effect the vast social changes for which it is either celebrated or derided, depending on one’s persuasion. Indeed, the courts can fix a lot less than we like to pretend. Consider two contemporary issues that should have more salience than they do.
Issue one: The justices have agreed to hear the government’s appeal in National Labor Relations Board v. Noel Canning in order to consider the scope of the president’s power to make recess appointments — that is, to name officials to positions requiring Senate confirmation at times when the Senate isn’t in session.
President Barack Obama has used the recess-appointment technique to put into power individuals the Senate was unlikely to confirm. President George W. Bush had done the same. The method is pretty simple: Is your favorite nominee tied up in committee? Not a problem. Wait for the senators to go away for a few days, announce that this constitutes a recess and, presto, make your appointment without worrying about any silly constitutional system of checks and balances.
Of course, this isn’t the process that the Framers contemplated, and it has few defenders other than (at the moment) partisan Democrats and (in the past) partisan Republicans. The Senate, meanwhile, has made occasional farcical attempts to stop it — for example, by holding pro forma sessions during what looks to the world like a recess, in which a trio of senators is on the floor, or on call, just in case.
It’s entirely possible that the Supreme Court will rule that such appointments are unconstitutional. But a decision either way won’t make much difference. The tendency of presidents to ignore the forms of the Constitution when making appointments is simply part of a larger shift of power away from Congress and to the executive. Congress could end the abuse of recess appointments in one shot by adopting a statute cutting the salary of all White House aides by 5 percent each time the president uses the recess-appointment power. That’s how a branch of government acts like a branch of government.
By way of contrast, suppose Congress, in a fit of ideological anger, were to strip the Supreme Court of its jurisdiction over, say, abortion cases. Nobody doubts that the justices would strike down such a statute unanimously, with anti-abortion and pro-abortion-rights types alike voting to protect the institution.
But Congress has become incapable of protecting itself. Members will rail and complain, and now and then maybe sue. They won’t stand up and defend their prerogatives. That’s why it doesn’t really matter how the court decides the recess-appointments case. If the court strips away this particular means of executive assertiveness, the president will find another — and Congress, in all likelihood, will angrily and helplessly allow it to happen.Segregation Concerns
Issue two: Consider Brown v. Board of Education, perhaps the most iconic decision in the history of the Supreme Court. Next year will mark half a century since Brown outlawed racial segregation in public schools. But segregation in the U.S. is getting worse, not better, especially in the so-called blue states, where parents of means can purchase private education for their children while supporting a political model that denies money for similar opportunities to poor parents — who, by remarkable coincidence, are disproportionately nonwhite.
Strangely, concerns about resegregation rarely point to this glaringly obvious cause. For example, an excellent report by the Civil Rights Project detailing drastically increased racial segregation in the schools of true-blue Massachusetts makes no mention in its lengthy set of recommendations of any efforts to improve access to private education.
The tendency of families who can afford it to opt out of public education entirely is a market-based solution to a problem of some complexity. The increased segregation these individual choices leave behind is a consequence the courts can’t fix, and efforts to do so only drive more families to exercise their constitutional right to choose private education instead.
What we see in these two examples — recess appointments and school resegregation — are the limits that the choices of both individuals and institutions place on the efficacy of constitutional decisions. The same rule applies in this term’s most controversial cases. For example, the court may have struck down the formula used to determine which states and counties are subject to “pre-clearance” under the Voting Rights Act, but Congress, if so inclined, can write a new formula supported by new factual findings. And even if Congress doesn’t act, activists will continue to register black voters and get them to the polls.
I am not saying that Supreme Court decisions don’t matter - - only that, in the long run, they matter less than the responses to them by public and private actors. Something to think about, surely, the next time a vacancy arises and the organized forces of the left and the right warn us that with the wrong appointment, the Apocalypse will lie before us.
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