Those who learned their American politics in a more considerate age, as I did, may be mildly startled, as I was, to hear that the Republican speaker of the House in Washington may seek Supreme Court assistance to curb the presidency and its current occupant.
Admittedly, President Obama in his frustration has loosed some rhetorical lightning bolts and threatened to do by executive order what Speaker John Boehners body refuses to do by legislation. He has also waived a few implementation deadlines in his health care plan, though his GOP detractors have not said why delay is objectionable if they think the plan is so bad. He has also joined recent presidents (notably Reagan and Bush Jr.) in issuing tendentious signing statements to impart his spin to bills he has signed.
Boehners idea, in which he is being coached by certain academics and columnists, is to demand that the court curb these practices. And that body may have original jurisdiction in such a case, as it did notionally in the famous instance of Marbury v. Madison (1803), in which Chief Justice John Marshall asserted that it is the function of the courts to say what the law is. The nine pundits who now sit on the high bench may need reminding that Marshall balanced his sweeping assertion of judicial authority with a shrewd refusal to force the Jefferson administration to deliver a magistrates commission left undelivered by the Adams regime. Marshall discovered, conveniently, that a minor power conferred on his court by the first Judiciary Act was unconstitutional.
Readers may have noticed the use, above, of the provocative epithet pundits to describe the nine incumbent justices. It seems these days to be accepted gospel that the black robe confers supernatural wisdom, and the current court has a full complement of justices who often follow their ideological prejudices in close cases.
But when it comes to refereeing political questions, there was a time, not so far back, when the court shied from such issues and when an attempt by one political branch to enlist the high bench in curbing the excesses of the other would have stimulated polite laughter in the privacy of the courts chambers. The public response would have been courteous, but the label political question would have been pronounced. In effect, if you, Mr. Speaker, think the president is out of bounds, you have means of checking him without judicial help.
Times change, however, and the last notable warning about judges crashing into what used to be called the political thicket came 50 years ago when the court reversed half a century of doctrine and plunged into the thickets of legislative and congressional reapportionment. The new doctrine was one man, one vote, which Justice William O. Douglas (prince of judicial pundits in his time) said had been the American standard since 1776. It has proved no less defective than any other sovereign test of political balance. Justice Felix Frankfurter, the courts anti-Douglas, thought the reapportionment decision (Baker v. Carr) a simple-minded error and said so. His warning against making one man, one vote the end-all of apportionment may have been the last gasp of the political questions warning. It is rarely invoked today.
Students of our history, indeed, may find President Obamas alleged pranks pretty piddling. There have been more important examples of presidential overreach: for instance, Lincolns wartime suspensions of the privilege of habeas corpus and FDRs unpublicized pre-Pearl Harbor assistance to the British Royal Navy against German submarines. This is not to mention the grumbling over Jeffersons unauthorized purchase of Louisiana or Teddy Roosevelts seizure of Panama from Colombia, of which he said: I took the Canal and let Congress debate; and while the debate goes on, so too does the Canal.
If Boehner and his flock pursue this dubious project, they may have some difficulty equating the mere waiver of legislative deadlines surely an example of what Justice Oliver Wendell Holmes called play in the [constitutional] joints or the threat of executive orders with the suspension of habeas corpus or undeclared presidential warfare, to say nothing of the looting of the Canal Zone from a sovereign country. As to those more daring ventures, the Supreme Court stood moot and let the politics play out. But the court is now flush with pundits of every political kidney, who obviously believe themselves wiser than mere lawmakers.
What political antiquarian will dare predict that the speakers errand will come to naught?
Edwin M. Yoder of Chapel Hill is a former editor and columnist in Washington.