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| Justice[s] [Are] Blind |
Some quick background: Free Enterprise Fund was a Roberts decision that struck down the "for-cause removal" provision of the Sarbanes-Oxley Act. Passed after Enron, the Act created the Public Company Account Oversight Board (PCAOB) in a public-private sort of arrangement, under the control of the SEC. The Board's mission is to enforce laws and SEC rules for accounting across all business in the US that does accounting. In order to ensure independence, the Act had said that the Board members, once appointed, could not be removed except for cause. The SEC, in turn, is an independent agency, whose political appointees can also only be removed for cause. The holding of the case, essentially, is that the dual "for cause" buffer insulates them too much against the President, and thus violates the Constitution.
We currently live in the what is perhaps most polarized political climate in the history of the country, where filibusters block even national security measures for political points and half of our legislative branch honestly believes its primary goal is the destruction of our President. Justices of the Supreme Court speak to closed sessions of conservative legislators. Presidents burrow ever more loyal political employees at the end of their terms, Monica Goodling is able to screen out any [liberal] from working at Justice for years without punishment, and where Congress’s most powerful check on the other branches is used solely for political reasons. (Compare President Clinton’s impeachment with Rep. Pelosi’s taking it off the table after the FISA scandal and WMD lies as well as the virtual guarantee that there will not be impeachment proceedings after Justice Thomas’s 20-year violation of federal financial disclosure laws.) Nearly everything in government is either nakedly partisan or has the potential to become so.
We know more than ever that civil services and non-partisan government functions are susceptible to Presidential political manipulation. The DOJ hiring scandal is the perfect example of that. Prosecution is something that is supposed to be non-partisan, and after President Bush broke the DOJ, President Obama now feels perfectly comfortable overriding Holder’s decision publicly for fear of interference with his political agenda (see Khalid Sheikh Mohammed). Now, this was possibly always true (though certainly more so now that we(the media?) care more about partisanship than sheer corruption), but like the filibuster in the Senate, a sense of propriety kept Presidents from actually abusing their power. However, all such collegiality is gone, and now that the blueprint is laid, the idea of non-partisan government operations is nearly dead. People are too busy cheering for Team D or Team R to care about corruption, even laid as nakedly bare as it is.
So how are we to achieve such a thing, given that most people agree some non-partisan governmental operation is good? The Sarbanes-Oxley Act was one experiment – Congress recognized the brazen politicization of government, realized financial regulators needed to be kept insulated, and made it so, by a huge majority. [The law passed the House 423-3, and the Senate 99-0.] Now, the actual holding of Free Enterprise Fund, while ridiculous in my mind, is not that big a deal. From Breyer’s dissent: “The upshot, I believe, is a legal dilemma. To interpret the Court's decision as applicable only in a few circumstances will make the rule less harmful but arbitrary. To interpret the rule more broadly will make the rule more rational, but destructive.” I firmly believe we’ll get the former because of the Court’s attempts to hedge and its antipathy for logical consistency, and thus the case will be limited to its specific holding, that this particular instance of “dual for cause” oversight is invalidated. [The opinion briefly and unconvincingly addresses the dissent's concern that most of the civil service is "for-cause" removal, so this dual level exists throughout independent agencies. However unconvincing, it's clear from this that the Court does not think it's invalidating a wide swath of civil services positions.]
However, I think the case stands for a more dangerous idea that contradicts another sentence from Breyer’s dissent: “As human beings have known ever since Ulysses tied himself to the mast so as safely to hear the Sirens' song, sometimes it is necessary to disable oneself in order to achieve a broader objective.” In this age of the partisan and the politicized, the Court’s apparent vision of the unfettered unitary executive, even to the point of nullifying a mostly harmless provision essentially for its symbolism, is at odds with the reality of political corruption. The Framers never wanted parties, but today we have nothing above them. The Court, by this decision, demonstrates at best a willful blindness to the shape of the country around them. The Court indicates that it will be unlikely to tolerate not just this, but any attempt to go back to the depoliticized, simply by virtue of it being the depoliticized and thus divorced from Presidential control. Never have we needed the flexibility to create a workable government more than today, and now we know the Court is pretty set against it.
This decision also lines up with many of the controversial ones from the Roberts Court in that the outcome of the case is arguably less important than the Court’s indication of their opinion on a general proposition. We see this in NAMUDNO, in which the Court issued one of the most implausible statutory constructions in history in order to avoid striking Section 5 of the Voting Rights Act, while spending pages upon pages describing how constitutionally shaky it is. We see this in Parents Involved, where Kennedy’s concurrence saved affirmative action in name, but Roberts made it clear that in practice, it’s simply dead as a concept. We also see this in Citizens United, to an extent, though in that case, the Court took what would have been extreme dicta, and turned into a holding by ordering re-argument on an issue not present before the Court. This method of writing decisions, while probably providing better guidance to the courts below than others, mocks the judiciary’s role of deciding the cases at bar. In the end, the arrogance of this Court, combined with their love of the unitary executive (not to mention the corporate elite), shows up merely as contempt for Congress, and sadly, contempt for democratic rule as a principle.
Related to my response paper is a video Glenn Greenwald posted yesterday discussing the brazen politicization of the Supreme Court's right wing. Not only does the Courts turn a blind eye to the realities of political corruption, but it openly contributes to them. In any rational world, Justice Thomas's actions would be ground for impeachment at the least, but as I mentioned above, that is now reserved simply as political tool:
Update: I just realized that the title of this piece is not exactly new news, given the Court's campaign finance rulings, and that any discussion of political corruption is incomplete without mention of Citizens United in that regard. But, rather than write tons more, I'll just note that here, and leave it as a background thought.
