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Righting The Courts

By Peter M. Bozzo

The American judicial system has received more attention than usual in the current presidential election cycle. In the Republican field, the candidates have vehemently criticized federal judges for overextending their judicial authority: Rick Perry called for term limits for Supreme Court justices, Newt Gingrich and Rick Santorum advocated the abolition of the Ninth Circuit Court of Appeals, and Michelle Bachmann and Ron Paul want to prevent the federal courts from hearing cases about same-sex marriage. But at the crux of the Republican criticisms lies a paradox: The federal courts, and particularly the Supreme Court, have been incredibly favorable to conservative causes in the past few years.

The responses to the Republican talking points are just as illuminating as the points themselves. While a New York Times opinion piece took the Republicans to task for attempting to restrict the power of the federal courts, the editorial ended with a stinging criticism of the Supreme Court’s 2010 Citizens United vs. Federal Election Commission decision—claiming that the justices had vastly overextended their authority by allowing corporations to make unlimited campaign contributions. Republicans want to restrict a court system whose overreaching has created a favorable political environment for the social causes they hold most dear; at the same time, many of those who reject the Republicans’ restrictions have been on the losing end of the federal courts’ most controversial cases from the past half decade. Why the divergence in views?

Part of the reason is that both sides of the political spectrum have the same fundamental critique of recent judicial decisions: These rulings have overextended the rights of certain citizens or groups at the expense of others. For conservatives, this overextension has enabled citizens to make broader claims on the federal government, leading to the kind of government expansion that has been the focus of Tea Party attacks. Liberals, on the other hand, fault the courts for facilitating an unprecedented expansion in corporations’ rights.

From the conservative perspective, a prime example is the Food Stamp Act. In the 1970s and 1980s, the act was interpreted liberally by the courts to require additional expenditures by the Department of Agriculture. Essentially, federal courts manufactured a statutory “right” to an adequate diet, moving beyond Congress’s original intent of supplementing inadequate diets. This judicial intervention had foreseeable consequences: Once the issue was framed as one of rights, food stamp recipients had an immediate trump that could be used to justify increased benefits regardless of the social costs (i.e., higher taxes, more spending). For a Tea Party base insistent on deficit reduction and budgetary reform, the judicial expansion of citizens’ rights to publicly funded benefits is an appealing talking point for Republican candidates.

But liberal critics have an equally valid point: If the courts have interpreted citizens’ welfare rights expansively, they have been equally careless in their interpretation of the rights of corporations. Allowing corporations to make unlimited campaign donations is another decision whose consequences were overlooked. By asserting a corporation’s absolute “right” to donate to campaigns, the Supreme Court cut off a valuable dialogue about how to balance the right to contribute with citizens’ rights to participate in campaigns on an equal footing.

What we can learn from both sides in this debate is that we need to focus on more fundamental changes. Providing Supreme Court justices with term limits or abolishing the Ninth Circuit Court of Appeals may serve one candidate’s political objectives by swaying the courts in a particular direction; however, it will not resolve the broader problem of a judicial system that constantly elevates citizens’ claims about “rights” without considering the corresponding rights that are trounced upon in the process.

We need to encourage politicians to avoid framing every issue as one of rights, to stop appealing to the courts to resolve these issues, and to avoid rhetoric that encourages the kind of adversarial legalism that has led to increased litigation of personal and political issues in the past several decades. And the courts need to step back from the judicial creation of rights—whether it’s a right to privacy, a right to social welfare, or a right to make campaign donations. It’s this avoidance of the absolute rhetoric of rights that will enable us to have a sustained national dialogue about some of the important social issues facing our nation—not the short sighted judicial reforms envisioned by the current Republican field.

Peter M. Bozzo ’12, a Crimson editorial writer, is a government concentrator in Eliot House

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