Or are they trying to conceal it? In the white hot excitement over last week's bench-clearing NARAL brawl, we forgot to note Sen. Arlen Specter's ("R"-PA) hurt-feelings letter to Judge John Roberts. Speaking on behalf of "irate" members of the world's greatest deliberative body and massage parlor, Specter condemns "the Court's denigrating and, really, disrespectful statements about Congress' competence. In U.S. v. Morrison, the court rejects Congressional findings because of 'our method of reasoning'." The Keystone State's senior senator, "who has labored through 25 years of intense legislative hearings and fact-finding plus prior public service and experience in the real world," continues:
(1) Is there any real justification for the Court's denigrating Congress' "method of reasoning" in our constitutional structure of separation of power where the elected Congress has the authority to decide public policy on issues such as gender-based violence effecting (sic) interstate commerce?"
(2) Is there any possible basis for the Court's characterization of "uniquely judicial competence" implicitly criticizing a lesser quality of Congressional competence?
(3) Do you agree with Justice Harlan's jurisprudence concerning legislation on the "rational basis" test as embraced by the dissent contrasted with the majority opinion?
(4) What is your thinking on the jurisprudence of U.S. v. Lopez and U.S. v. Morrison which overturned almost 60 years of Congress' power under the Commerce Clause?
Thanks to reader biologist for the heads up.
Specter's comments opened to mixed reviews. The Washington Post is characteristically sympathetic:
Some rulings have offered a healthy check on congressional power over the states. Others have been frankly inconsiderate of Congress's ability to make law in matters squarely within its competence….
The commerce power, the subject of Mr. Specter's missive, is the legal foundation for a huge swath of modern law. Civil rights, environmental and worker protections statutes all depend upon it…
Judge Roberts's opinion [in the Rancho Viejo "toad case"], which questions whether the commerce power is broad enough to permit the federal government to protect an endangered species within a single state, is a bit elliptical and underdeveloped…[but] raises the concern that he would take a view of federal power more constrained than is healthy in a country with a modern economy, a mobile population and environmental problems that know no state borders.
The Pittsburgh Tribune-Review, meanwhile, gives Specter an exorcism:
Specter's view of legislative supremacy is demonstrably absurd. As [Chief Justice John] Marshall said, such a view of the Constitution would result in "Giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure."
Marshall pressed the point still further, asking, "Could it be the intention of those who gave this power, to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?"
How pointless is Specter's fulminating? Possibly not as pointless as most of us would wish. His concern about the Rehnquist court's "judicial activism" is pretty much standard anti-federalist stuff; whichever way it goes down, this will mainly rehash fights we've seen in our own lifetime.
His comments against the respective competences of Congress and the Supreme Court—though keyed off a David Souter dissent—are considerably more revolutionary. Judicial review of new laws is not actually prescribed in the Constitution; it comes out of the Marbury v. Madison precedent, and in theory there's nothing to stop the court from reversing that precedent. That's certainly a long shot, but then we live in an era when the left and the right are equally exercised against "activist judges" who thwart the demonstrated will of the public, when federalists are widely considered out-of-control madcaps, and when the process of filling court seats is heavily biased toward approving pliable, career-driven hollow men. Specter's comments may appear to be laughable, but they're only fall-down funny if you take them seriously.
Full text [PDF] of Specter's letter here. Jacob Sullum reviews NARAL's anti-Roberts ad here. Nick Gillespie defends Roberts against charges that he's a card-carrying member of the Federalist Society here. The Senate gets seriously disrespected, as anti-slavery/anti-imperialist Senator Charles Sumner gets beaten with a cane (and tries to defend himself with a feather) here. Kudos to Specter for using the correct adjective "intense" rather than the popular but incorrect "intensive."