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Republican Courts

April 4th, 2009

The US Supreme Court has just brought down a 5-4 ruling, written by Clarence Thomas, denying workers the right to sue over age discrimination if their union agreement calls for arbitration. As the New York Times says, it’s hard to believe that Congress intended this.

It seems likely that we will see a lot more of this kind of thing, since the Bush Administration has packed the courts with movement conservatives. Fortunately, there is a simple response available, at least in cases of statutory interpretation. Every time the Supreme Court comes out with a decision like this, Congress should pass a tightly worded act, repudiating the Court’s interpretation. Sooner or later, they will get the message.

We had this problem in Australia with a Chief Justice (Garfield Barwick) who continually undermined the tax laws on the basis of an extreme form of textualism. In this case, it wasn’t sufficient to fix the law after he broke it, since new tax dodges arose with great regularity. Eventually Parliament passed amendments to its meta-legislation, the Acts Interpretation Act, stating that the courts should take into account the intention of Parliament as stated in the second reading speech that normally introduces the law. Barwick resigned about the same time.

Of course, this won’t work if the Republican majority on the court relies on constitutional interpretation to strike down legislation. This ought to (but certainly won’t) provoke an outcry from conservative opponents of “judicial activism”. But, as Roosevelt showed, it’s a political struggle in which the courts are not as well-placed as they might seem. A determined legislature with popular backing can make it very hard for courts to defend strained interpretations of the constitution.

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  1. April 4th, 2009 at 23:23 | #1

    When you say “conservative opponents” [of 'judicial activism'] you don’t specifically mean to include in that description the Murdoch rags, such as the Spurious-Tale or The OZ, do you?

    You probably can’t take them on directly, but we can!

  2. April 5th, 2009 at 09:18 | #2

    Whilst, I don’t have a copy on hand, there’s a very interesting article in Dissent Magazine issue number 27 of Spring 2008 on this question.

    From my recollection the article was “Pure and simple unionism” by Dirk Baltzly.

    It shows how in the late 19th and early 20th centuries, the US Supreme Court consistently frustrated the clear pro-union intentions of the US House of Representatives and Senate. From my recollection, there was some law against cartels that the majority on the Supreme Court were able to twist around in order to be able to rule against unions.

    This greatly hampered the operation of American trade unions in the early 20th century.

    The problem was finally rectified by President Roosevelt, when he appointed a number of judges who were not biased against trade unions.

    This and the current problems with the US supreme court now stacked with Bush-appointed corporate judicial activists show that reliance on progressive so-called ‘judicial activism’ can be a double-edged sword.

    In hindsight, for whatever good was achieved by those Australian high court judges who served the people rather than the corporate elites, democracy works far better in the interests of ordinary people, when those who wield power, whether judges or legislators, are more transparently accountable to ordinary people.

    Speaking of the appalling Murdoch newsmedia, Megan’s own Spring Hill Voice’s media page is well worth a look, for those who haven’t already seen it.

    There’s an excellent older article giving a lot of background to about Murdoch’s Brisbane Spurious Tale newspaper, but unfortunately I wasn’t able ot locate it.

  3. Socrates
    April 5th, 2009 at 10:37 | #3

    Movement conservatives are often hypocrites. The ideology appeals to people who want to be free to do as they please.

    My regard for the US Court has been negligible ever since the Gore V Bush decision and the inconsistency of reasoning used. Sadly is a long time in either USA or Australia that we sent our best and brightest lawyers off the the highest courts. We could use more like Mason, Deane and Brennan. IMO both sides have been guilty of token appointments.

  4. fred
    April 5th, 2009 at 12:00 | #4

    And people wonder when ‘some’ [love that journalistic favourite] people are sceptical, ‘some’ even to the point of derision I am told, about the democratic need for the ‘rule of law’ which if challenged outside the legalistic mind set equates to authoritarian anarchy.
    Or something equally unimaginably nasty anyways.

  5. TerjeP (say tay-a)
    April 5th, 2009 at 12:02 | #5

    A determined legislature with popular support can make even unstrained interpretations of the constitution very hard to defend.

    In my book the discovery of a womans right to abortion in the US constitution rather than a ruling that it is a matter for the states to determine is bizaar. The states are permitted to decide what is and isn’t murder in most other instances but apparently not when the human is unborn. And I say this as somebody who does not think abortions should be criminalised.

    The point of having a constitution is to limit the freedom of governments (for the sake of the governed). It is basic to the rule of law (as opposed to the rule of whim). That popularity of an initiative is sufficient to side step such limits is something we should all be concerned with even if we like a given initiative.

    When the US government criminalised liquor it still had sufficient regard for the constitution that it went though the proper process of seeking a constitutional amendment. When they banned marijuana they just did it with complete indifference to the constitution.

    I think a correct reading of the US constitution would make the regulation of abortion and marijuana a matter for the states.

    The USA has a particularily well thought out constitution. We should ask if we can have it because they don’t seem to be using it.

  6. Alice
    April 5th, 2009 at 12:49 | #6

    I really object when both the courts and the media and the financial regulators and the economic policy makers are all are “republican”
    Its a horrible combination. The conservatives have gone stark raving mad in many countries and can barely be called conservative. I think this sums it up pretty well

    http://3.bp.blogspot.com/_D19IrlZNZQM/Scst-LQlP5I/AAAAAAAAAAM/51mm7T83PKM/s1600-h/theresanidea.jpg

    Unfortunately the balanced have had to live with their mad individual greed and corruption enhancing ideas for some decades. It has been (and is) really hard to tell them they completely messed up hasnt it? When people tried conservative think tanks created the denialist propaganda industries (deny everything but especially deny being wrong ie about climate change, sorry, aboriginies, Iraq, Wall St, the GFC, executives remunerations, public service – its a whole container of denial and it gets published in the “Daily Denials” thanks to our own native American, Rupe – King of Dupe).

  7. rog
    April 5th, 2009 at 18:41 | #7

    Its hard to find a balanced view and Alice makes it harder.

    As far as I can see its a win for the unions as they appear to favour arbitration whilst non unionists have the more expensive court option.

  8. Alice
    April 5th, 2009 at 20:40 | #8

    7# Yes I agree Rog – It is hard to find a balanced view. Ive been looking for one myself. The actions of governments, courts and economic policy advisers over the past two to three decades since people developed a love affair with dangerous ideologies and commenced a systematic downgrading of employee rights…(hours of work, contracts, underemployment and now high unemployment)…Im a little unbalanced by it (disgusted as well) you are right.

    The politics, economics and legal environments of greed and self interest have prevailed over common sense and balance.

    Yes – unions would want to arbitrate but individual employees wouldnt want those congressional rights not to be discriminated against in the workplace taken away. No mere union should be able to negotiate those individual rights away. That is wrong. The congressional rights should prevail not union arbitration.

    This will just send people away from union membership, the court would have been more than aware of that. I see it as an almost deliberate union breaking decision and thus a decision in favour of employers not in any way supportive of the existing rights of the individual. In fact its an attack on the congressional rights of individuals (and contrary to the so called ethos of individualism).

    If arbitration doesnt solve the problem for the individual, then they should have recourse to courts to protect those rights. Unions dont act for individuals and may choose not to arbitrate at all. Union membership should not negate or be able to negate congressional individual rights.

    Thats morally very wrong.

  9. Freelander
    April 6th, 2009 at 07:34 | #9

    The problem with the US Congress is that it is not able to “pass a tightly worded act, repudiating the Court’s interpretation” as you suggest. Unlike countries which have parties, both the Democratic and Republican parties are loose coalitions of independent actors. The absence of parties and party discipline is why so much pork is attached to anything they pass. On top of this there is the president’s veto power which means strong support may be needed for any legislation the president doesn’t want. These factors mean that the Supreme Court is the most powerful legislative body in that country. That said, Obama coud always extraordinary rendition (or Gitmo) a few of them which would provide an opportunity for replacements!

  10. Bingo Bango Boingo
    April 6th, 2009 at 08:38 | #10

    Both the Tories and the Leftists have a tendency to overlook or ignore fundamentally undemocratic judicial activism when its effects are aligned to politically desired outcomes. Democracy goes out the window for both of these groups when they find before them an agreeable (compliant?) supreme court. Witness, for example, the way in which the Teh Australian Left accepted many of the clearly wrong Gibbs/Mason High Court decisions of the 1980s.

    BBB

  11. Bingo Bango Boingo
    April 6th, 2009 at 08:40 | #11

    And early 1990s…

    BBB

  12. jquiggin
    April 6th, 2009 at 09:09 | #12

    #9 Your view of the US parties as loose coalitions was true for a long time, but is now obsolete. US Congressional votes are now much more on party lines – for example, Obama’s stimulus package was supported by 3 Repub senators and 0 Reps, but nearly all Democrats.

  13. Freelander
    April 6th, 2009 at 10:47 | #13

    Obsolete? A swallow does not make the summer.

  14. April 6th, 2009 at 11:24 | #14

    Couldn’t agree more. It is the jog of parliament to make laws. Judicial activism can be brought to a standstill by a decent parliament.

  15. Jim Birch
    April 6th, 2009 at 13:24 | #15

    I got the impression that you disagreed with more or less everything parliament does, Steve? How long do you think it would take our parliament to generate common law to it’s current level and how many disasters would you be criticising along the way?

  16. April 6th, 2009 at 19:33 | #16

    Not sure where you get that from Jim. I have always been very forward in stating that parliament should make laws, not judges.

    Parliament, no matter how much we may disagree with it, is something we have a vote in, and to some extent it reflects community opinion/standards.

    Decisions by judges are subject to none of the above.

  17. Bingo Bango Boingo
    April 6th, 2009 at 21:23 | #17

    Steve, the standard response to that is that parliaments remains free (for the most part) to demolish any common law the courts come up with. To the extent that they choose not to, that in itself is a reflection of community opinion/standards. To put it another way, judge-made law that truly offends community opinion/standards does not last very long. Of course, this response is inadequate when you come to constitutional questions, in relation to which the courts, and one in particular, have been quite happy to return rampantly undemocratic and clearly wrong answers, with apparent impunity.

    BBB

  18. Chafing Under Obama
    April 6th, 2009 at 22:08 | #18

    If the workers wanted the right to sue they should never have allowed the union to negotiate that right away. Presumably, if arbitration is in favor of the employer, they traded something for it – eg better pay, better leave provisions, whatever. The workers can’t have it both ways: take the better conditions then retrospectively choose not to abide by the provisions of their contract that they don’t like.

    BTW #12: The US is the same loose coalition it always was. Every vote is a conscience vote. Representatives vote according to the wishes of their constituents. Real democracy, not the faux Parliamentary kind you get in most of the rest of the world. As someone who has experienced both kinds, I love the US version. It makes writing your representative worthwhile.

    The Democrats had a couple of honeymoon Obama-inspired unity votes, but nothing more significant than that. Eg, just last week the Senate just voted something like 60/40 to not have cap-and-trade voted on as a budget issue (which would have made it filibuster-proof).

  19. April 6th, 2009 at 22:24 | #19

    # Steve at the Pub Says: April 6th, 2009 at 7:33 pm

    I have always been very forward in stating that parliament should make laws, not judges.

    Parliament, no matter how much we may disagree with it, is something we have a vote in, and to some extent it reflects community opinion/standards.

    Decisions by judges are subject to none of the above.

    Hear! Hear!

    If there is one thing the past generation has taught us its that activist judges, whether of Left- or Right-wing persuasion, are a plague on the Peoples House. They are generally educated in a very rareified atmosphere and have very little idea of the problems confronting The Man in the Street.

    They generally get their heads filled with fashionable nonsense as under-graduates. But the closetted and cloistered nature of legal practice means that they rarely find their prejudices challenged by reality or another party not intimidated by the prospect of a contempt order.

    By the time they finally ascend to the Bench their world view has ossified into a rock hard granite like structure which only a stick of TNT could crack. Look at the self-righteousness of Einfeld even AFTER he was sent down.

    If Judges want to start imposing their political preferences onto laws then let them stand for election along with the local alderman and dog-catcher. That should bring them down to earth with a rude thud.

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