Some High Court Modesty Is in Order

At the Supreme Court a week ago, during oral arguments in the McCain-Feingold campaign finance case, I was hanging on every word uttered by Chief Justice William Rehnquist and Justice Sandra Day O’Connor. They are widely believed to be the swing justices on a court that is divided on the constitutionality of the campaign finance law’s provisions regulating “soft money” and issue advocacy.

Depending on how these justices vote, we could soon enter an era of deregulated campaign finance spending in which corporations and unions can spend unlimited sums on advertising that supports or opposes candidates for office, and corporations, unions and wealthy individuals can effectively give any amount to political parties to bankroll campaigns. Then again, they could vote to allow Congress, via McCain-Feingold, to close loopholes in the existing system and create stronger controls on the campaign finance system than we have seen in a generation.

How did it come to pass that a couple of justices can have so much control over the regulation of U.S. politics? After all, the detailed ins and outs of how to run elections simply aren’t addressed in the Constitution. But court intervention in this area is hardly novel. Since the 1960s, the court has shown no inclination to stay out of politics.

The trend goes back at least to the Warren court and Baker vs. Carr, which allowed the court to begin hearing cases about how voter districts were apportioned. Then, the court majority presented itself as merely “interpreting” the Constitution in finding, for example, the “one person, one vote” principle contained in the equal protection clause of the 14th Amendment.

But far from being neutral acts of constitutional interpretation, political-process cases reveal the value judgments of the justices.

Consider the 1966 case, Harper vs. Virginia Board of Elections. The Supreme Court struck down Virginia’s poll tax as unconstitutional on a 6-3 vote. Yet when the court initially took the case, there was a 6-3 majority vote to summarily uphold the tax -- based on the states’ right to set voter qualifications -- over an impassioned draft dissent written by Justice Arthur Goldberg.

What happened? Justice Hugo Black did not want to leave Justice Goldberg’s dissent unanswered and called for a full hearing; Black got burned. Three justices who had at first voted to uphold the tax simply changed their minds about the meaning of the equal protection clause, leading to an opinion that is now viewed as one of the foremost Warren court political-process cases.

It is not just court liberals who mask political-process value judgments as constitutional interpretation. Just look at the 1993 case of Shaw vs. Reno, which invalidated a number of voting districts with a majority of minority voters. Or Bush vs. Gore, which found for the first time that the equal protection clause included the right to have election recounts conducted using uniform counting standards. As with the poll tax case, neither of these decisions can be successfully defended on grounds of textual interpretation of the Constitution or application of prior precedent.

And even though some observers thought that after Bush vs. Gore the court would back away from such cases, it has not done so. By the end of next year, the court will have decided major cases related not just to campaign finance law but also to the Voting Rights Act and partisan gerrymandering.

Should the court back away? Should it march out of the political thicket it marched into in Baker vs. Carr, or stick strictly to “textual” interpretation of the Constitution? The answer to the latter question is no -- the Constitution’s text is inadequate to answer many of these political-process cases. Instead, the court should opt for judicial modesty.

There are core equality rights contained in the Constitution that the court should work to protect -- for example, the right of all adult citizens to vote. But the court should leave most controversies about political equality to the political process. Finding an appropriate balance between 1st Amendment rights of speech and association and the need to curb the influence of Big Money in campaigns, for example, is only helped by the deal-making and flexibility required in writing and passing laws. The court should uphold such delicate compromises unless they are really incumbency protection measures in disguise.

When the justices decide political regulation cases such as McCain-Feingold, they should follow the principles of judicial minimalism. Move slowly. Decide no more than necessary. Be cognizant of the role other institutions may legitimately play in shaping the law.

The path of Supreme Court modesty in regulating the political process would be good for the court and, more important, good for the country.

Richard L. Hasen is author of “The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore,” to be published by New York University Press in November.