Further proof, if any were needed, that the silly season – otherwise known as an election year – is upon us is an op-ed that appeared today in the Boston Globe entitled “A make-or-break moment for Supreme Court appointments” over the name of Hillary Clinton.
Undoubtedly penned by someone other than the candidate herself, the piece is nonetheless a fair statement of Mrs. Clinton’s views of the United States Supreme Court as a progressive policy-making body rather than the impartial judicial tribunal the Framers envisioned when they drafted the Constitution’s Article III.
Mrs. Clinton, who helpfully points out parenthetically that – in addition to being a presidential candidate – she is also, like her predecessor, “a lawyer and former law professor,” rightfully observes that “who sits on the court matters a great deal” and that “[t]he court’s decisions have a profound impact on American families.”
From there, however, what could have been an important analysis of the proper role of the courts in a functioning democratic republic devolves into a plainly partisan campaign commercial for which one hopes the Globe has appropriately charged her campaign or reported to the FEC as an in-kind donation.
As president, candidate Clinton promises:
I’ll appoint justices who will protect the constitutional principles of liberty and equality for all, regardless of race, gender, sexual orientation or political viewpoint; make sure the scales of justice aren’t tipped away from individuals toward corporations and special interests; and protect citizens’ right to vote, rather than billionaires’ right to buy elections.
Oh my. Don’t we already have that? Not according to candidate Clinton.
Under those nasty ol’ justices appointed by the Republicans she’s most proud to enumerate among her “enemies,” for example, Friedrichs v. California Teachers Association, to be argued on Monday, could make it “harder for working people like teachers, social workers, and first responders to negotiate together for better wages and benefits.” Not to mention harder to deprive municipal employees who don’t agree with union views of their First Amendment rights while simultaneously bankrupting state and local governments whose taxpayers aren’t represented at the bargaining table.
Or “[t]ake abortion rights,” says Mrs. Clinton, who has famously echoed her husband’s equally famous promise while president to help make abortion “safe, legal, and rare,” even personally adding “and by rare I mean rare.” Whole Woman’s Health v. Cole, scheduled for argument in March, warns Mrs. Clinton, might help make abortion more rare while doing nothing to make it either less safe or less legal by upholding a Texas law requiring in part that abortion providers have admitting privileges at nearby hospitals in the event of emergencies.
The Court might also, warns Mrs. Clinton, decide that “one person, one vote” means that states should count actual legal voters instead of including noncitizens, felons, or people not legally in the country to begin with. It could reaffirm that only Congress, not the president, has the power to legislate under Article I of the Constitution and that the president’s constitutional duty is to see that the laws the people pass are faithfully executed. And it could decide that, in a nation in which mixed-race couples and children and grandchildren are now commonplace, it’s time for universities to stop reserving admissions slots for student based on the color of their skin instead of the content of their character. (I think that the late Rev. Dr. Martin Luther King, Jr. might once have said something about that.)
“In a single term,” Mrs. Clinton concludes “conservative justices could undermine virtually every pillar of the progressive movement.”
Unless, of course, you vote for her. Then she’ll appoint Supreme Court justices who will continue to create the nation’s public policy as they see fit in cases like Obergefell v. Hodges.
Although a fine political appeal to her progressive constituents, Mrs. Clinton’s op-ed piece is a terrible commentary on the state of American civics literacy – including in particular separation of powers and the proper roles of the courts. By conflating the power of the courts and the Congress at the whim of the executive, what she really advocates is the antithesis of the horizontal separation of powers that the Constitution mandates.
Hasn’t the nation had enough of one-branch government run by a sometime lawyer and former law professor?
David Applegate is a Chicago-based trial lawyer and partner at the law firm of Williams Montgomery & John Ltd.
