The Supreme Court's War on the Twentieth Century

FILE - In this March 28, 2012 file photo, the Supreme Court is seen in Washington. President Barack Obama is laying groundwor
FILE - In this March 28, 2012 file photo, the Supreme Court is seen in Washington. President Barack Obama is laying groundwork to make the majority-conservative Supreme Court a campaign issue this fall, borrowing from Republicans who have long railed against liberal judges who don’t vote their way. It’s an emerging Democratic strategy to paint the court as extreme, especially if it makes what Obama calls an “unprecedented” decision to throw out the nation’s health care overhaul. (AP Photo/Charles Dharapak, File)

Is the Supreme Court about to declare war on the twentieth century?

This is the larger question raised by an escalating series of decisions, starting with the recent Obamacare case. In designing its sweeping reform, Congress relied on 70 years of case-law, emerging from the New Deal, that upheld its sweeping regulatory authority under the commerce clause. Yet Chief Justice Roberts, as well as four other conservatives, dramatically challenged this basic element of the New Deal settlement. While Roberts made a last minute doctrinal swerve on another issue to uphold the statute, this should not blind us to the dangers that lie ahead. While his act of statesmanship prevented a head-on confrontation between the presidency and the Court, the conservative majority has issued a fundamental challenge to a basic premise of twentieth century constitutionalism.

A similar challenge will arise this year as the Court weighs the fate of the Voting Rights Act. "We Shall Overcome," Lyndon Johnson famously declared in introducing the legislation to Congress in 1965. But it took more than this rhetorical gesture to transform the dreams of Martin Luther King into the law of the land. Johnson had to win the support of a broad bipartisan coalition, including Republican leaders like Everett Dirksen, for a Voting Rights Act that would actually generate real-world results when so many previous statutes had failed. Their success of 1965 has been repeatedly reaffirmed by the political branches -- most recently, when President Bush renewed the law for 25 years after it was passed 390 to 33 in the House and unanimously in the Senate. Nevertheless, the Court's conservative five-judge majority may well strike down key statutory provisions as unconstitutional.

Thaddeus Steven and other leaders of Reconstruction will start spinning in their graves if the Roberts Court bases its decision on the "original understanding" of the Fifteenth Amendment. While other legal scholars may leap to the Court's defense, there is one thing they can't deny. In 1965, America's leaders heard all these conservative arguments from southern senators during their lengthy filibuster against the bill. If the Roberts Court now endorses some version of these claims about "states rights," it will be repudiating the civil rights generation's understanding of the Fifteenth Amendment. Is it right for five judges to repudiate the hard-won insights of the twentieth century?

This question will arise, in a different form, when the Supreme Court reviews a remarkable decision handed down last week by the DC Circuit.

The three-judge panel imposed new and severe limitations on the president's power to make interim appointments to the executive branch. Throughout the twentieth century, politically hostile Senates have repeatedly tried to undermine sitting presidents by refusing to confirm key nominations. Both parties have played this game, but the problem has gotten worse now that "silent filibusters," and similar devices, enable a small partisan minority to kill appointments. Without any weapons to combat this abuse, presidents can't fulfill their constitutional duty "to take care that the laws be faithfully executed."

In 1921, Attorney General Harry Daugherty responded to this emerging problem by interpreting the Constitution to allow the president to make interim appointments while the Senate goes on vacation. Over the next ninety years, this practice has evolved in complex ways. Presidents have learned interim appointments come at the price of alienating powerful Senators. But senators have learned that extreme partisanship will only provoke presidential assertions of their appointment power.

This evolving pattern of checks-and-balances raises important constitutional issues. But the Court of Appeals was not interested in resolving them. Instead, it repudiated the entire system for failing to conform to the original understanding of 1789. As a matter of history, this radical reinterpretation fails to do justice to the Madisonian principles inspiring the document as a whole. But once again, this is not my crucial point: If the Supreme Court allows this recent judgment to stand, it will be casting away the century-long effort by many thoughtful Senators and Presidents to make the Madisonian system work in a sensible fashion.

The Court's war on the twentieth century is not inevitable. Perhaps the Chief Justice, or one of his fellow conservatives, will execute statesmanlike swerves in upcoming cases. But if not, a runaway Roberts Court will intensify the institutional stand-offs and unnecessary crises that are undermining the confidence of ordinary Americans in their government.

Bruce Ackerman is Sterling professor of law and political science at Yale, and the author of the multivolume series, We the People.