The McVeigh Verdict

In times like these, the judiciary appears to be the only branch of the national government working to resolve social conflicts. Ironically, though the courts loom ever larger for a public increasingly distrustful of politics, critics continue bashing the federal bench.

The conviction in federal district court of Timothy J. McVeigh as a terrorist dramatizes the crucial role that the judiciary plays. Just a week before, the Supreme Court unanimously ruled that Paula Corbin Jones may bring President Bill Clinton into court for allegedly sexually harassing her when he was a governor. In doing so, the court reaffirmed that not even the president is above the rule of law.

Throughout U.S. history, the courts have played a major role in the nation’s governance, often changing the course of public policy. At times, the Supreme Court has taken on major social controversies that neither the Congress nor the president was willing to address. It fell to the Supreme Court to move the nation toward school desegregation with its landmark 1954 ruling in Brown vs. Board of Education. In the 1960s, the court led a “reapportionment revolution,” ensuring “one person, one vote.” In the 1970s and ‘80s, the court defended women’s freedom of choice and expanded the scope of the 14th Amendment’s guarantee of equal protection of the law.

More recently, the Rehnquist court brought about the end to most affirmative-action programs. In 1989, it ruled states and localities could adopt such programs only if they are narrowly tailored remedies for past discrimination against women and minorities. In 1995, the court extended this to strike down most affirmative-action programs put into place by the federal government. Neither Congress nor the president would have agreed to end these programs.

Politicians, no less than individuals and interest groups, often turn to the federal courts to resolve their disputes when political compromise fails. One example is the controversy resulting from Congress giving the president the power of a “line-item veto,” which the court will rule on later this month. Following the enactment of the Line-Item Veto Act of 1996, Sen. Robert C. Byrd (D-W.Va.) and several other senators and representatives, who had voted against the bill, immediately filed a lawsuit challenging its constitutionality.

The spotlight on the federal judiciary has rarely been brighter. Alongside such high-profile cases, Congress and the president are barely visible. Little legislation has passed, and laws that have been enacted largely shift power back to the states. For his part, Clinton has championed few initiatives other than joining Colin L. Powell and others in calling for more volunteerism in addressing the nation’s problems.

Ironically, the GOP-controlled Congress is spending a lot of time attacking the judiciary. Under Chairman Orrin G. Hatch (R-Utah), the Senate Judiciary Committee has forced the administration to back down on numerous judicial candidates and slowed confirmation of those already nominated. During the last four years, Congress has refused to raise federal judges’ salaries. Today, more than 10% of all federal judgeships remain vacant.

In addition, Republicans in the House opened a second battlefront against federal judges. Rep. Henry J. Hyde (R-Ill.) introduced legislation that would change federal jurisdiction over challenges to statewide referendums, like California’s Proposition 209, and set strict conditions for court-ordered remedies that require tax increases. In opposition is the Judicial Conference of the United States, the federal judiciary’s policy-making body headed by Chief Justice William H. Rehnquist--hardly a liberal group.

To be sure, virtually everyone can point to a judicial decision they find unwise or outrageous. Court-bashing has a long tradition in U.S. politics. Ever since Thomas Jefferson called judges a “corps of sappers and miners,” politicians have castigated the courts for decisions they disagree with. In this century, the two most popular presidents vigorously attacked the federal judiciary with identical rhetorical flourish. When President Ronald Reagan denounced court rulings on abortion and affirmative action in the 1980s, he merely replayed charges leveled 50 years earlier by Democratic President Franklin D. Roosevelt against the courts for invalidating much of the New Deal program for economic recovery. Each attacked “judicial activism” for departing from the “original intent” of the Constitution, and promised to appoint “strict constructionists.”

These days, conservatives are hardly alone in criticizing the courts. Whereas they want to curb an overreaching judiciary, neoliberal academics counter that courts can’t bring about social change, anyway. Brown was a failure, they contend, because a decade afterward, segregated schools persisted. And America is fast becoming resegregated. In short, courts are less powerful than conservatives claim and people should look elsewhere for agents of social change.

But just as conservatives exaggerate when decrying an “imperial judiciary,” so do neoliberal critics in dismissing the power of courts. Major social changes, like that represented in Brown, cannot be achieved by any single institution. The intractable problem of race remains and requires the cooperation of all three branches and the people.

Whether on the right or left, critics also mislead in portraying courts as unconstrained knight-errants pursuing their own goals. Courts are not, as Justice Benjamin N. Cardozo observed, “roving commissions.” Rather, they respond alike to mundane and major conflicts brought by litigants and socioeconomic and demographic changes. Brown and other decisions reflected the social forces of the civil-rights era. Today, the judiciary cannot escape issues such as the “right to die,” because of an aging population and rising health-care costs. In a sense, courts are always somewhat behind the times, though that gives them the benefit of hindsight in deciding cases.

Most important, and ironically, conservative and neoliberal critics of the courts share a common goal, if for different reasons. Both would have the country hear far less “rights talk” and lower expectations for conflict resolution through the courts. For those on the right, courts thwart the politics of self-governance by meddling too much. In contrast, the left yearns for the participatory politics of a deliberative democracy that would bring greater social change than ever delivered by the courts.

In sum, court bashers on the right and left want more politics and less recourse to rights, the law--and the courts. Both fail to comprehend that Americans basically want the opposite. They want equal justice and certainty in resolving conflicts, whether small or large. Americans have a peculiar “legal habit,” as Alexis de Tocqueville, in the 1840s, astutely perceived: “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”

Although perhaps too litigious and inevitably disappointed by this or that judicial decision, Americans nonetheless look to the courts for problem-solving. More than in any other country, courts and law substitute for politics, or achieve by other means what politics fails to deliver. “This is a government by lawsuit,” Justice Robert H. Jackson once observed, and “lawsuits are the stuff of power politics in America.”

What Tocqueville noted more than 150 years and Jackson reaffirmed a half-century ago still holds true. Politics appears increasingly dirty, unfair and unable to resolve much, whereas federal courts continue doing their work and loom larger. Politicians, pundits and academics, therefore, should beware of bashing the independence of the federal judiciary. No country asks so much from its courts--and none is better served.