Supreme Court is Embracing Reason and Compromise
Baltimore Sun
OPINIONCOMMENTARY
Supreme Court is embracing reason and compromise | GUEST COMMENTARY
By GEORGE LIEBMANN
PUBLISHED: July 21, 2024 at 5:30 a.m.
More than half a century ago, Charles de Gaulle published the last volume of his memoirs. As the moving force behind France’s first successful constitution, his reflections on the American Constitution are of interest. He observed that the American system of separation of powers between Congress and the president survived only because controversial moral and social questions were reserved to the states. In France, the national government was the target of every grievance, resulting in either the submission of the president to the deputies or a coup attempt, which in France came two years into de Gaulle’s term as president.
The judicial decisions over abortion and gun rights in the United States have nationalized what were once state-level issues. Few can claim that American politics has since become more moderate and rational. Even Justice Ruth Bader Ginsburg warned against the divisive consequences of Roe v. Wade.
The current Supreme Court has received a shower of abuse from both left and right for its far-reaching pronouncements. But we are seeing signs of a chastened court. The “liberal” position on abortion was repudiated, and the issue returned to the states, by the recent Dobbs decision. Efforts by so-called conservatives to impose a national prohibition against abortion pills were rejected on the basis that the plaintiff advocacy groups lacked standing to sue. The restrictions against associational standing may become one of the most influential policies the court establishes. Future constitutional litigation must involve the claims of real people, not the constructs of ideologues.
The court has backed away from its ill-advised McDonald and Bruen decisions protecting gun rights against regulation by the states. There’s little reason to think that the framers of the Fourteenth Amendment regarded gun rights as one of the “liberties” guaranteed by that amendment. The court has now sustained common-sense state gun regulations targeting domestic abusers. While the court said that a law banning machine guns did not prohibit gun stocks, it did not question the ability of legislatures to enact restrictions on them.
The present term is notable not only for the court’s decision to limit associational standing but for its position that major new federal regulations should be the work of Congress, not the work of appointees of the president. With its June decision overturning the Chevron deference, the court carried this principle further, empowering the letter of congressional law over the interpretations of unelected federal bureaucrats.
As for the court’s hysterically criticized decision in Trump v. United States, which ruled that the president is immune from prosecution for official acts, the opinion is not as revolutionary as it’s made out to be. Absolute immunity for constitutional officers is nothing new. Judges and legislators enjoy it. The loquacious former federal judge J. Michael Luttig, for all his agonizing on cable news about the decision’s threat to the “rule of law,” himself enjoyed immunity from indictment or suit for his judicial acts.
What was once an unthinkable event has become common with the myriad prosecutions of former President Donald Trump. The convention was that officials acting outside the scope of their offices should be prosecuted by ordinary prosecutors and not months before an election. This has been turned on its head; here Trump faced not ordinary but special prosecutors, as well as state prosecutors who pledged to indict him. Few prosecutions of public officers by successor regimes have been either just or successful.
The best remedy for wrongdoing in public office is public exposure by a nonpartisan inquiry, like the Watkins Committee that recommended the censure of Senator Joseph McCarthy. The purpose of these criminal investigations, however, is not to inform the electorate but to disqualify a candidate. Litigation rather than electoral participation has become the favorite tactic of the Democrats.
No one doubts that Trump can still be prosecuted or sued for murder. The issues at stake concern official acts. Should Barack Obama be thrown in court for authorizing the drone assassination of an American citizen in Yemen? What of Obama and George W. Bush’s prolonged detention without trial of alleged terrorists?
Authentic liberals and conservatives should not deplore the Supreme Court’s long-overdue diminution of juristocracy and the imperial presidency. Legislatures are agencies of compromise. The right-wing believers in a unitary executive and the left-wing exponents of a “living constitution” will have to earn the assent of 535 members of Congress and thousands of state legislators.
George Liebmann (george.liebmann2@verizon.net) is president of the Library Company of the Baltimore Bar and the author of various works on law and politics, most recently “The Tafts” (Twelve Tables Press, 2023).
Posted in: Culture Wars, Judiciary and Legal Issues, State and Local Politics, The Right, Urban Affairs, Welfare and Other Social