Trump’s Ginsburg Supreme Court Replacement: Bad News for Our Environment?

Dolphin “Fishing,” Tampa Bay, Florida

In the September 21, 2020 Washington Post’s article, An extra Trump Supreme Court justice may help cement his environmental rollbacks, Jody Freeman, director of Harvard Law School’s environmental and energy law program, is quoted as saying:

“A further tilt of the Court in the direction it is already going ― skeptical of regulation, unsympathetic to the idea that agencies should have some room to interpret their statutes broadly to solve new problems, and uninterested in reading statutes with their broader purpose in mind, certainly won’t help the cause of environmental protection.”

The article discusses the EPA’s “Clean Power Plan,” which has been challenged by the Trump Administration as being adopted by the EPA in excess of its authority. The Post’s concern is that if a conservative Supreme Court agrees with Trump, “it could hamstring a future president from using existing law to regulate climate-warming pollution.”

Conservative Justice Neil Gorsuch has been quite vocal that Congress’s delegation of its legislative authority to the executive branch, which runs our nation’s administrative agencies, has exceeded its constitutional authority. He also has been critical of the Supreme Court’s historic, sweeping deference to executive branch administrative agencies making, interpreting and enforcing their own rules – rules that have the force of law. Other conservative justices look as if they agree with Gorsuch.

The liberal justices see any rollback as stifling the executive branch and its administrative agencies from being responsive to issues, like climate change, that our complex society requires flexibility and some speed in solving. They see these sorts of problems best handled by the executive branch of government. In fact, Justice Kagan, the Court’s remaining liberal female member, has written that we live in the Era of Presidential Administration, and the Supreme Court should facilitate that sort of necessary management.

Before I and the rest of us who favor caring for our environment and minimizing our damage from climate change side with Kagan, there are a few constitutional and pragmatic thoughts worth thinking through.

The Constitution our Founders adopted in 1789 provides that the exclusive right to pass legislation belongs to our first political branch of government, the legislative branch. Nothing in the Constitution says that Congress has the right to delegate law-making to our second political branch of government, our executive branch; and it doesn’t give the executive branch authority to set up and operate what has become known as our “Fourth Branch” of government, our administrative agencies. But that’s what we have done. The authority is not in the words of the Constitution, but in its implied meanings.

Today, as many as 30 times as many laws (in the form of agency rules) are passed in a year by the Fourth Branch than are passed by Congress. In fact, not too long ago, I did a blog on this problem, Too Damn Many Regulations? I pointed out that in 2016, while Congress passed 2,966 pages of laws, the administrative agencies pushed out 97,110 pages of regulations. Thus, Gorsuch has a point about Congress’s delegation. The give and take between elected Congressmen with differing views, which is to take place in debates about proposed legislation, is totally missing from the rule-making process.

However, there is another, more serious threat to our Democracy than reams of paper filled with regulations. It’s a combination of the influence of lobbies and what I call legalized corruption. First there is a very cozy relationship between the regulating agencies and the companies they regulate. Money in the form of political contributions does that sort of thing. Lobbies not only have a strong influence on the rules being drafted, they frequently draft the rules.

Worse, there is the “swinging door” between the agencies and the companies being regulated. As we change administrations over time from liberal to conservative and back again, whomever is in charge appoints new political heads of the executive branch agencies, often from regulated businesses. For example, Trump appointed an ex-coal lobbyist to run the Environmental Protection Agency. All administrations do this sort of thing, but Trump, in less than eight years, has appointed more lobbyists and regulated company insiders to work in our agencies than Bush and Obama did in their combined 16 years of running our government. And what usually happens, is that after a short term running our agencies, the lobbyists and insiders return to their private businesses, knowing where pressures can be applied to get the best results for the companies they represent. We, the people, the intended beneficiaries of our Constitution, are in a distant last place. Yes, there are ethics rules that are supposed to minimize this sort of thing. But, believe me, they really don’t work.

Now, not all is lost. Last time I ran a check, Trump and his friends rolled back 102 regulations. However, the rollbacks are being challenged by concerned environmental and other organizations in the federal courts, now populated primarily by conservative judges. What has been Trump’s success ratio? About 12%. He’s lost about 88% of his challenges. You can check Trump’s rollbacks.

Thus, there are judges, liberal and conservative, that do understand that our Constitution is written to provide us with an independent judiciary in a country intended to by run by the rule of law, though our political branches prefer a country run by the rule of dollars.

These tough sorts of issues and subjects is why I wrote Democracy of Dollars, now in its final editing. We need to understand the issues and take intelligent, carefully considered stands. We can’t assume that everyone who thinks different from us is wrong.

On the issue of Congressional over-delegation, I do believe my liberal friends are wrong. We need to get back to Constitutional government, and Congress needs to quit over-delegating to the executive branch, which is too easily corrupted by money.

Democracy of Dollars

What Kind of Justice System Do We Want?

Lincoln Memorial

Today, the second woman appointed as a Supreme Court Justice, Ruth Bater Ginsburg, died. She was a brilliant judge, whose prior legal career championed human rights, particularly women’s rights. “On the basis of sex” is a documentary of her ground-breaking legal work. Her life as a judge on a conservative Supreme Court has been one of documenting strong dissents about human rights the majority of the Court has chosen too frequently to disregard. For all of us, there is a value in strong dissents. Frequently, our experiences open us to their wisdom and they ultimately become the law of the land. A prime example is Brown v. Board of Education, which some seven decades after deciding “separate but equal” facilities for black kids was constitutional, adopted the message of Judge Harlan’s dissent: separate lacks equality. The same result will come to pass from many of Justice Ginsburg’s dissent, but it will take time.

In these contentious times, our Senate is now faced with approving a presidential appointment for her successor. In his final few months in office Obama appointed Merrick Garland, a well-qualified moderate judge to the Supreme Court. Mitch McConnell, the Republican Senate leader, refused to bring the appointment up for consideration by the Senate, arguing that with the election soon at hand, the appointment should be made by the next president. However, now that Justice Ginsburg has died, and Trump is in the last few months of his term of office, McConnell has changed his mind. He’s planning a quick appointment to be sure another conservative judge joins the court, which would shift the balance from 5 to 4 to 6 to 3.

There’s not much you and I can do about the political process of judicial court-stacking, but most polls have indicated that we Americans don’t care for the politicizing of our Court, whose role is provide checks and balances for us over our two political branches of government, the legislative and executive branches. In a September 18, 2020 Times/Siena poll, voters preferred that the next president select Ginsburg’s replacement by a 53% to 41% margin.

There are very important constitutional issues involved in the debate about appointing judges. The first consideration is for us to think about our Constitution and its purpose. Today, we’re engaged in a “winner-take-all” political system, that over the years goes back and forth between conservatives and liberals. When the baton is passed, the successor administration frequently moves fast to undo what his or her predecessor has done, good or bad, and then fills the void with whatever political thought is popular with the winning party. That winner-take-all approach misses the point of the Constitution. Elections are not Super Bowls, with the trophy meant for the winner and the loser be damned and ignored until the next Super Bowl/election.

The Constitution is a document of accommodation of differing points of view. About one-third of us are conservative, about one-third liberal and the rest independent. When a party wins an election and ignores the rest of us, it is essentially ignoring two-thirds of our people. Oliver Wendell Holmes perhaps said it best in 1905 in one of his famous dissents. Holmes opined that our constitution is “made for people of fundamentally differing views.” The Constitution is not a document to assure political domination, conservative or liberal. Political minorities share equally with the winners in the Constitution’s inalienable rights and are, by design, protected from the “tyranny of the majority” James Madison wrote about in Federalist Paper #10. That design, however, assumes that Congress represents all of us as fiduciaries, not merely the winners of a particular election. We have lost sight of that important fiduciary responsibility.

As designed, with the normal turnover of judges through retirement or death, a President typically has an opportunity to appoint one or two judges. With the political movement shifting from time-to-time from conservative to liberal and then back again, appointments that are not manipulated as Mitch McConnell has a penchant for doing, will tend to produce a balanced Supreme Court over time, sometimes being 5 to 4 liberal and other times 5 to 4 conservative. Such a Court is as close as we can come in representing all of the people. The give and take between justices with differing views produces the most wholesome results for us. Why? A court stacked with like-minded judges is prone to “groupthink” decisions, as are boards of directors with “loyal directors” who never question the corporate CEO. Our Constitution has set up checks and balances that, when ignored by the deference of the Court to the political branches, are worthless. Similarly, decisions of likeminded justices who have no reason to think about other points of view don’t represent the people.

In our times, President Kennedy’s Bay of Pigs fiasco and President George Bush’s Middle East Wars are examples of groupthink decisions in the executive branch. Our two greatest Presidents, Lincoln and Washington, avoided groupthink when they appointed their cabinets. They each chose cabinet members with differing points of view. Lincoln actually appointed cabinet members from his political opponents. In a diverse society with today’s complexity, not having those differing points of view to exchange ideas and work out compromises, our Democracy will not work. A Court of like-minded judges are prone to similar mistakes.

Our creator did not create some of us conservatives and some of us liberals and the rest of us independent without a reason. We were meant to talk to each other. Learn from each other. Accommodate ourselves to each other. Compromise with each other. Manipulated winner-take-all politics is not a tool of a healthy Democracy.

As we think about this, let’s consider what Ben Franklin told the members of our Constitutional Conventions in 1787:

“I agree with the Constitution with all its faults… I believe, further, that this is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall be so corrupted as to need a despotic government, being incapable of any other.”

Today, our government is an oligarchy, run by a few for a few. We are too close to having a full-time despotic government. And we don’t need that!

Not stacking Supreme Court picks will allow the Court to exercise its checks and balances that a politicized Court will never do. That’s a start in returning us to a Democracy. That’s worth your taking a strong stand.

Belief-Checker: Do We Need Supreme Court Judges Who Champion “Original Meaning”?

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The other day a good friend gave me a call. He’d decided to vote for a particular candidate this November, not because he thought the candidate would be a stellar leader but because the candidate would be instrumental in the appointment of a Supreme Court justice who’d champion “original meaning” when it came to interpreting our Constitution and its Bill of Rights. That’s what we need, he says, to secure our eroding values and get our country back on track.

Knowing my friend, when he has his mind made up, there’s not much room for alternative conversation. But later that day, I decided to ask Joanie, my bride of 60 plus years, what she thought about “privacy” – did she have rights to privacy?

Her answer was a resounding “Of course I do!”

Then I asked her, “Are your privacy rights protected by our Constitution and its Bill of Rights?”

Again, a quick answer, “Of course they are. Everybody knows that!

I don’t think there are too many people who would disagree with Joanie, particularly those of us who followed Apple Computer’s recent balking at the Federal Government’s attempt to pry into cell phones – which framed the issue as a Constitutional contest of “privacy rights versus security.” Nor would those conservatives in North Carolina and elsewhere, who champion public bathroom privacy rights in face of the recent Supreme Court decision regarding gays, disagree.

“Short answer” about Privacy Rights and Our Constitution

We may agree with Joanie’s answer that each of us have rights of privacy protected by our Constitution and its Bill of Rights. But, if we turn the pages of those historic documents we won’t find the word “privacy” anywhere. It’s not in the Constitution nor in the Bill of Rights. Yet, we have it as a Constitutional right.

The Supreme Court that confirmed the right to privacy for us is known as the Warren Court. The Chief Justice was Earl Warren, former Republican Governor of California, appointed by Republican President Eisenhower. The landmark decision is Griswold v. Connecticut, decided in 1965, when I was in law school.

The Supreme Court “located” our right to privacy in the “penumbra” surrounding the Bill of Rights.

Was the Court right?

What about “original meaning?”

We begin our inquiry with some history.

James Madison and the Bill of Rights.

In his 1990 law article, The Madisonian Theory of Rights, Professor Jack Rakove wrote that James Madison, the principal author of our Constitution and Bill of Rights, “was highly skeptical of the value of bills of rights.”

Madison, a deep thinker and a prolific writer, whose notes are our prime source of information about the proceedings of the 1787 Constitutional Convention, laid out his early concerns in his Vices of the Political System of the United States, including:

“A still more fatal if not more frequent cause lies among the people themselves. All civilized societies are divided into different interests and factions, as they happen to be creditors or debtors – Rich or poor – husbandmen, merchants or manufacturers – members of different religious sects – followers of different political leaders – inhabitants of different districts – owners of different kinds of property &c &c. In republican Government the majority however composed, ultimately give the law. Whenever therefore an apparent interest or common passion unites a majority what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals?”

Madison saw the greater danger at the state and local government level, an issue a federal bill of rights would not address. Madison’s proposed solution was a strong federal government with checks and balances that would keep political leaders and their factions in line.

Rakove summarized Madison’s thinking (We add observations in parenthesis):

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• Voting majorities control the legal power of the states. (Creating what has become to be known as the risk of the tyranny of the majority. In Florida’s 2016 primary election, only 24% of eligible voters participated. Thus, 12.01% of the people constituted the controlling majority. Low voter turnout has become the national norm, skewing power in favor of voting factions representing political extremes who, by default, have become the voting majorities. Government has, as Madison foresaw and wrote, “become an instrument of the major number of constituents” who vote.The tyranny of the majority has become the tyranny of extremes.)

• The danger to the rights of individuals and to minorities is greater within state and local governments than with the federal government. (The anti-federalists pushed for the bill of rights as state protection from federal interference, not individual protection. It was not until the passage of the 14th Amendment after the civil war, and later Supreme Court interpretations of that amendment, that, over time, most of the provisions of the Bill of Rights were extended to protect individuals from state and local government action. Prime examples include the Court’s decision regarding school racial discrimination. In our time, state gerrymandering of voting districts remains a prime tool in state governments to manipulate the influence of the party in power, further discouraging broad-based voting.)

• Any list of rights having Constitutional protection runs the dangers of being manipulated by crafty legislators and unnamed rights of importance run the risk of denial or minimization because they are not on the list.

The Anti-federalists rejected Madison’s ideas of the federal government having veto power over the states. (As noted above, the 14th Amendment, adopted 80 years later, which allowed the Court to apply the Bill of Rights to state action, went a long way to meet Madison’s concerns.)

The defeat, and Madison’s concern about legislative misrule and the power of factions, led him to the necessity of the Bill of Rights, which he wrote. But his rationale was not to protect the states; rather to protect people by, as he wrote to Jefferson, having a Bill of Rights that would serve as “a signal for rousing & uniting the superior force of the community.”

Original Meaning.

On June 26, 1787, Madison spoke to the Constitutional Convention assembled in Philidephia about their work in process. From his notes:

“In framing a system which we wish to last for ages, we shd. not lose sight of the changes which the ages will produce. It is more than probable we were now digesting a plan which in its operations will decide forever the fate of Republican Govt.”

Did Madison believe that the Constitution’s carefully chosen words, once written, would always have but one meaning, or did he mean that the impact and meaning of the well-crafted words would evolve with the benefit of experience – the changes “the ages will produce?” Hints as to his thoughts may be gleaned from his Federalist Paper #37:

“The experiences of the ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. … All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faults, the medium through which the conceptions of man are conveyed to each other adds a fresh embarrassment.”

In 1881, Civil War veteran Oliver Wendell Holmes, who became one of our greatest Supreme Court Justices, published his treatise, The Common Law. His thesis completes Madison’s thoughts:

“The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”

In 1991, I wrote Crash Landing, Surviving a Business Crisis, based upon my personal experiences, concluding that if the stories we use to guide ourselves are to survive over time, our stories must be continuously redefined:

“like the Constitution of the United States, which serves today’s needs not because it is rigidly bound to its ‘original meanings,’ as some legal scholars suggest, but because it is a ‘living document,’ continuously renewed by the insights of each succeeding generation. Historical roots provide an anchor, but Constitutional interpretation grows our of the experiences of each new generation, a step at a time.”

Do I misinterpret Madison’s words?

Is Holmes wrong?

Were my writings in Crash Landing wrong?

The late Supreme Court Justice, Antonin Scalia – considered by many to be the unshakable champion of textualism and original meaning, basing our Constitutional rights on the words alone – would say, “yes.”

Scalia would remind us, that in 1803 the Supreme Court ruled emphatically that the role of judges is to “say what the law is” and that’s where judicial responsibility begins, resides, and ends – unbiased by the historical context in which the words were written or Holmes insight that our values are shaped by “experience” or Madison’s insight into our need to cope with unforeseen “changes which the ages will produce.”

Scalia explains in his 1989 Rule of Law as Law of Rules: “If a barn was not considered the curtilage of a house in 1791 or 1868, and the Fourth Amendment did not cover it then, unlawful entry into a barn today may be a trespass, but not an unconstitutional search and seizure.”

But Professor David A. Strauss, counters in his 2008 article critical of Scalia’s textualism: “Even if one can determine what the original understanding was, there is the problem of applying it to radically new conditions: Is a barn in the rural nation of 1791 to be treated as equivalent to, say, a garden shed in 21st-century exurbia?”

Scalia sums up his position in his 2012 Reading Law: The Interpretation of Legal Texts, that judges should “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.”

But is that what Scalia as an originalist – a “textualist”- actually does in practice?

Textualists like Scalia – like the rest of us – have a difficult time overriding their propensity to select facts that support their underlying beliefs and to ignore and disregard contrary facts. Richard Posner, a Reagan appointee to the Federal Court of Appeals, and University of Chicago law professor, in his 2012 article, highly critical of Scalia’s textualism, points out that: “Omitting contrary evidence turns out to be Scalia and Garner’s [Scalia’s co-author] favorite rhetorical device.”

Among Scalia’s many cases Posner discusses is his case regarding guns, District of Columbia v. Heller. The result of Scalia’s opinion has been to change the understanding of the Second Amendment as prohibiting the Federal Government from disarming state militias (as interpreted when I was in law school) to one granting individual’s expanded gun rights. In addition to Posner’s article, Civics 101: The Second Amendment, provides thoughtful insight about the decision’s omissions, including the debate that is in Madison’s notes. (We add: Militias were important to those states that used local militias to capture runaway slaves and those states were concerned about their militias being disarmed by the federal government. The American Slave Coast: A History of the Slave Breeding Industry provides an in-depth discussion of the underlying issues.)

It should come as no surprise that Scalia said on MSNBC that neither the Constitution nor its Bill of Rights provides a right to privacy – and on that point, he says, the Warren Court was wrong.

Belief-Check

In writing the Griswold right to privacy opinion, Justice William Douglas provided a bevy of rights that we have become accustomed to that are not described in the Constitution or the Bill of Rights. Over years the unlisted rights have grown into Constitutional “rights,” including our expansive understanding of “free speech,” which in construed to include many nonverbal forms of expression. Although few of us would doubt the wisdom of Justice Oliver Wendell Holmes when he said that the right to free speech doesn’t give us the right to cry “fire” in a crowded theater when there is no fire, we would all be shocked if the First Amendment free speech right didn’t give us the right to take photos with our iPhones, or produce and enjoy movies or radio programs, or assemble as clubs or crowds, or march or burn flags in protest. These sorts of rights, evolved through living and experience, Douglas reasoned, are found in the penumbra surrounding the written words of the Constitution and its Bill of Rights.

The Griswold case overturned a law that prohibited a married couple from using contraceptives. Douglas concludes:

“The present case, then, concerns a relationship lying within the zone of privacy, created by several fundamental constitutional guarantees. … We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”

He asked, “Would we all want the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

Thus we rate the proposition that we need Supreme Court Justices that champion “original meaning” as false. There aren’t any, even among those who claim they are, like the late Antonin Scalia. In a world that has evolved from simplicity to complexity, the written words of the past have to be shaped by the context of the present and the future.

In discussing the overpowering influence of our belief systems on us in Wonderlust, I wrote:

The Supreme Court’s 5-4 rulings about important issues aren’t the results of the conservative judges having one set of facts and the liberal judges another set of facts. Nor are they the results of one set of judges having a clearer vision of the facts or issues or the “original meaning” of our Constitution. Professionals who have sworn to represent everyone, as judges and politicians take an oath to do, like the rest of us, are driven by their beliefs and maneuvered by their emotions and subconscious minds to pontificate sober rationalizations called “reasoned opinions.”

[C]onsider the possibility that our Creator didn’t shape the DNA of some us to be conservative in our political or philosophic thinking because being conservative is always rational and right and all people should be conservative. Nor did our Creator shape the DNA of others among us to be liberal in our political or philosophic thinking because being liberal is always rational and right and all people should be liberal. Our globe is populated by people with differing points of views and insights for a reason. We gain from lessons provided to us through the wisdom of each other. If we have the sensitivity to listen to, and to consider, those whose ideas don’t fit comfortably within our own mind frames we will make better decisions. That’s why today’s political polarization is so sad and so nonproductive.

That’s the Belief-Check we should pay attention to!

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