That’s a fight that lots of other liberals are anxious to have because it reminds them of the war FDR successfully waged against the Supreme Court during his second term after it had eviscerated the economic recovery program enacted during his first term. They’d like nothing better than to cast themselves in the role of modern-day New Dealers, prying the Supreme Court out of the grip of “economic royalists.” Yet the parallels between Franken’s (as Dionne describes it) and FDR’s campaigns against the judiciary are, shall we say, less than exact.“Franken previewed his own approach earlier this month in a powerful speech to the American Constitution Society that has already made conservatives unhappy. Franken argued that the right has dominated the judicial debate by suggesting that “the court’s rulings don’t matter to ordinary people” through a focus on cases involving late-term abortion, flag-burning and pornography.
“The time has come, Franken said in an interview, for progressives to recognize that Roe v. Wade has distracted attention from what is now at the heart of the judicial controversy: the ability of individuals to assert their rights against corporations.
“‘If you use a credit card, if you work, if you drink water, you’re affected by the court,’ he said. ‘Roe is important, but there’s this whole other area we weren’t talking about.’
“In his speech, Franken cited a long list of conservative rulings that powerfully affected average citizens: decisions against shareholders’ rights, against workers fighting for their pensions, against small-business owners battling price-fixing, against environmentalists trying to protect wetlands -- and, note well, in favor of Exxon when it capped punitive damages for the Valdez oil spill.”
When he took on the Court, FDR was upholding the authority of the political branches against the judiciary. His mission, in the words of his Second Inaugural Address, was to make “the exercise of all power more democratic . . . [by] bring[ing] private autocratic powers into their proper subordination to the public’s government” (my emphasis). The courts stood in his way because prevailing judicial interpretation of the commerce clause and the due process clauses of the Fifth and Fourteenth Amendments made most of what we now recognize as modern liberalism unconstitutional. FDR enjoyed a massive popular mandate, but the courts had excluded the liberal preferences of a vast majority of the voting public from the process of public decision-making on legally tenuous grounds.
The conservative decisions that gall Franken and Dionne—“against shareholders’ rights, against workers fighting for their pensions, against small-business owners battling price-fixing, against environmentalists trying to protect wetlands”—are all firmly within the constitutional powers of the political branches. Were healthy Democratic majorities in both houses of congress willing to stand up and be counted, they could have their way on most of these issues without the slightest judicial interference from the Roberts court. But they aren’t, apparently because Democratic congressmen are unwilling to be held accountable for those votes and run the political risk of trying to hold Republicans accountable for illiberal votes. Franken and Dionne’s complaint against the Roberts Court is that it hasn’t relieved a Democratic administration and congress of those burdens.
I don’t deny that there’s something to be said on the legal merits for the liberal position on each of the issues that Franken and Dionne raise. But however powerful those legal arguments are, they have nothing much to do with bringing “autocratic powers into their proper subordination to the public’s government.” When liberals flatter themselves that they’re finishing the political work that FDR started, they should remember that the New Deal was a democratic movement.