Posted August 28, 2013 by Richard Moore
To borrow a favorite word from President Barack Obama, the nation is engulfed in a national crisis.
No, it’s not the crises we hear the president talk so much about. Not the crisis of health-care access. Not the crisis of Republican obstructionism. Not the crisis of unaffordable college, the latest of the president’s favorite crises.
Rather, it’s a very real moment of truth for privacy, for transparency, for due process. And if the public doesn’t pay attention, it will be the zero hour for individual and constitutional freedoms.
For those who have been listening out their political windows, we have not heard the sharp reports of military boots in the streets (so far, except in Boston), coming to throw you a nice little search party. But the repetitive thuds we do hear are becoming disturbingly normal.
It’s the thud, thud, thudding of courts increasingly rubberstamping the decisions, the actions, the opinions of government. Not only those of the federal government, but those of state and local governments, too.
The government these days is everywhere, that we have known for some time, but now we know the courts – the branch of government whose ostensible mission it is to protect individual rights and liberties, to ensure due process, and to provide fairly for the peaceful settlement of conflicts – exist for no such reasons.
Very few constitutional missionaries are judges these days.
Most of today’s judges are instead on call to serve their masters in the other four branches of government: the executive, the legislative, the bureaucratic, and the lunatic media.
One need go no further than the Foreign Intelligence Surveillance Court to see the truth of it – over the course of 11 years, FISA has approved virtually every particular, every angle and slant, of the National Security Agency’s massive domestic spying machinery.
Not too very long ago, Mr. Obama urged us to trust federal judges on constitutional matters because, if we didn’t, there was going to be “some trouble here.”
I never did figure out whether he was threatening us, but there’s trouble all right. The FISA court has seldom turned down the government on anything. In 2012, according to Salon, the government made 1,789 applications to the court; FISA did not deny a single one. The government withdrew one, and 40 were modified, but the rest just breezed right on through.
And so it went in 2011 and in 2010 and, well, you get the picture (and the government got your emails and phone call records). All totaled, since 2001, the court denied just 10 applications out of more than 15,000, while modifying perhaps several dozen, Salon reported.
It’s not just FISA, though. What about the Supreme Court of the United States?
Most notably, the high court ratified Obama’s edict that every citizen purchase health insurance. In 2005, too, in the Kelo decision, the Supreme Court for the first time backed a local government’s desire to seize private property through eminent domain to give to other private property owners for development.
Now I will be the first to admit the judicial system has not morphed overnight into an amoeba-like, pervasive network of kangaroo courts, designed to give public credibility to the latest government decrees, a la the old Soviet Union or China today. That’s not the case; everything is more nuanced in the good old USA – an intricate and sometimes competing dissimulation of establishment motives bathed in the rhetoric of democratic symbolism.
There are any number of high-profile decisions to counter the perception of rubberstamping.
The Supreme Court invalidated a key provision of the Voting Rights Act that Obama wanted retained, for example. The courts have come down squarely on the side of the people on Second Amendment decisions. Two federal appeals courts have ruled Obama’s NLRB appointments to be unconstitutional. And, stateside, a New York appeals court knocked down Nanny Bloomberg’s attempt to ban large sugary drinks.
So the judicial system lives, and so does freedom. Still, one must ask, for how long? It lives, it does not thrive.
More concerning, then, than the possibility of a sudden and complete capitulation of the courts is the drip of judicial surrender, otherwise known as deference to the executive and legislative branches. It’s the trend line, and the philosophical attitude emanating from Washington, that’s bothersome. It is also something both liberals and conservatives should worry about.
For years, conservatives fretted instead about judicial activism, and they were right to have done so. Under liberal domination, courts routinely exercised executive or legislative power, such as seizing authority over prison systems, endowing federal agencies with extreme regulatory powers unintended by Congress, and effectively legislating from the bench, as when the court established a constitutional right to abortion.
Once liberal policies and favored landmark rulings were enshrined in law, however, many liberals soured on judicial activism, precisely because what can be done can be undone. They quite naturally wanted deference to the existing canon, and the court in the William Rehnquist years showed somewhat more restraint than previous courts had.
It was the beginning of a trend toward what justice Stephen Breyer called “judicial modesty.” Deference, especially to the other branches of government, is what it’s called today, and it is the new judicial liberalism. Liberals still support judicial activism when it favors their agenda – gay marriage, to cite one instance – but they howl at any attempt to roll back the past work of an overreaching judiciary or to stall new bids at legislative or executive excessiveness, citing “deference.”
Well, modesty and deference is one thing; abdication of responsibility, another.
James Madison explained the role of the courts in a June 8, 1789, speech to Congress: “Perhaps the best way of securing (the separation of the executive, legislative and judicial branches) in practice is to provide such checks, as will prevent the encroachment of the one upon the other…independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”
In other words, while the courts shouldn’t overstep their constitutional boundaries, that doesn’t mean they should stand down altogether. The courts have an active role to play in protecting individual constitutional liberty – they are that impenetrable bulwark against every assumption of power in the legislative or executive – and that’s not achieved through unrelenting deference.
Clint Bolick, a senior fellow at the Goldwater Institute, put it this way: “courts that merely rubber-stamp legislation or executive branch decisions out of bland, or blind, ‘deference’ evade their essential constitutional role.”
When John Roberts became chief justice, and a majority flock of conservatives landed on the Supreme Court, liberals became worried once more about “judicial activism,” only now they called it conservative judicial activism. They feared what had been done was about to be undone, and so then the howling for deference commenced.
The years have passed, though, and the Roberts’ court simply hasn’t measured up when it comes to conservative judicial activism. On the critical issues of the day, with some notable exceptions, it has failed to restore the proper review role of the courts and instead acquiesced to the powers of the executive and legislative branches. See Obamacare as a primer.
The judiciary has moved from one extreme to the other, from out-of-control judicial activism to a court system that increasingly can only rubberstamp its agreement as it slides into its deference-induced coma.
The trend toward deference began in the Rehnquist era, and has accelerated in the Roberts era, if not in the Supreme Court itself, in other courts, federal and state. As the drip of deference becomes a steady stream, it threatens to undermine critical statutes and protections needed for open government.
Open-records laws in Wisconsin and several legal challenges surrounding them offer up a prime example on the state level.
In The Lakeland Times lawsuit against Lakeland Union High School, in which the paper sought a list of supposedly negative comments made by former employers of a candidate for employment, the newspaper, after its own investigation, disputed whether the document was legitimate.
The newspaper’s inquiry raised at least a real possibility that some of the comments had been fabricated, or taken out of context, and the paper asked for a confidential court review of the records to see if the document was what the high school said it was. The high school was opposed, saying everyone – including the court – should just trust them.
The judge in the case, Leon Stenz of Forest County, seemed appalled by that position: “You’re saying you don’t get the records, judge, and ‘trust me.’ What kind of review do we get then? Where is it implied in the statutes that, if the authorities say it is so, it is so?”
In the end, though, that’s exactly what the judge did. After a high-school official swore in an affidavit that the comments were true and accurate and in context, Stenz deferred to the authority and dismissed the case, all without conducting any independent review to see if school officials were in fact telling the truth.
He took their word for it.
In another case, the Wisconsin Institute for Law & Liberty, acting on behalf of the MacIver Institute and Brian Fraley, sought to have Sen. Jon Erpenbach (D-Milwaukee) turn over unredacted versions of emails sent to him by government employees using government email accounts at the height of the state’s collective bargaining contention. The emails were about the collective bargaining legislation, which affected those employees.
Erpenbach had redacted the government employees’ names and email addresses, saying he wanted to protect them from potential retaliation. The circuit court concluded it was within Erpenbach’s discretion to withhold the information. While the court said it might not have made the same decision as Erpenbach did, it was nonetheless required “by case law to accord deference to his judgment.”
MacIver and Fraley have appealed, through WILL, and they take strong exception to the court’s deference logic, contending the court should have come to its own independent conclusion rather than merely accepting the senator’s judgment:
“The circuit court got it 180 degrees wrong when it stated that it was required to defer to Senator Erpenbach’s discretion with respect to the balancing test,” their brief stated. “Rather, it was the circuit court’s duty to critically examine Senator Erpenbach’s proffered explanation to see if the facts he presented overcame the strong presumption in favor of disclosure.”
The ramifications of simply yielding to a custodian’s assertion of nondisclosure would be consequential, the brief stated.
“The circuit court’s decision granting deference to the records custodian would give carte blanche to a custodian to perform the ‘balance’ without any meaningful review by the courts,” the brief stated. “That is not the law of Wisconsin.”
Unfortunately, as these two cases demonstrate, neutered courts are fast making it the law of the land. There is less independent review of government assertions in court these days, and more deference. And any attempt to properly review and test government assertions is met derisively as “judicial activism” by the once and very masters of judicial activism themselves.
These days agencies such as the NSA routinely get what they want out of deference. Regulatory agencies gain unprecedented command authority out of deference. Open records laws are flung to the wind out of deference. If it continues, the government will soon drain the last drop of liberty out of the Bill of Rights, and the last drop of freedom out of our lives.
Then the thud you used to hear out your window will instead be inside your house and inside your lives.
Don’t expect much deference then.
First published in The Lakeland Times