The Supreme Court: An 'Irresponsible House of Lords'?

I am belatedly reading Edmund Morris' Colonel Roosevelt, an absorbing book about the later years of one of the nation's greatest presidents, a dynamo of a man who roamed the Earth and the American political landscape one hundred years ago. Theodore Roosevelt was a "progressive Republican," which today seems more and more like an oxymoron. His bravest speeches, uttered today, would be denounced by Limbaugh and Company as socialist or worse. But on virtually every page of Morris' work there are passages that resonate today.  

Last week, for example, just in time for Egypt's revolution, I was reading about Roosevelt's majestic post-presidency tour through Africa and the Middle East. After a speech at Cairo University in which Roosevelt had scolded his Arab hosts, Morris writes, "hundreds of furious students marched on [Roosevelt's hotel] and shouted 'Give us a constitution' at his terrace windows. The Colonel was engaged elsewhere, but got back to the hotel room in time to see the demonstrators breaking up." Sound familiar?

This week, the Roosevelt epic turned back to domestic matters -- and to the United States Supreme Court which, in the view of the ex-president and his confederates, was excessively pro-corporate and formalistic. One of Roosevelt's muses at the time was a Harvard law professor named Arthur D. Hill, a renowned constitutional scholar. Hill, writes Morris, "compared the Court to 'an irresponsible House of Lords.' Another contemporary voice in Roosevelt's ear was that of Supreme Court Justice Henry Moody, who nonetheless thought that "courts sometimes erred in deciding against the national government." 

We are a long distance removed from the Lochner era of Supreme Court jurisprudence, which largely eroded the "progressive" (there's that word again) political gains of the period. But Roosevelt's lament also fits comfortably into the modern life of the Court and his worries, in part anyway, should be our own. This week, for example, marked yet another week when the justices did not meet to hear oral argument, another sign of what courtwatchers have long described as the Court's incredible shrinking docket. If the British House of Lords meets publicly less often than the United States Supreme Court -- if-- it's a close call.

In the meantime, one of the Court's members, Justice Clarence Thomas, just observed (in absentia, of course, because the Court wasn't in session) his fifth consecutive year on the bench refusing to ask questions during oral argument, a dubious judicial achievement if there were one. The same justice's ties to a conservative special interest group also raised new questions this week about unsettling and imperious judicial behavior. This from a Court run by John G. Roberts, Jr., the Chief Justice, whom the author and legal analyst Jeffrey Toobin has labeled as "doctrinally conservative." 

We even had a story this week tracking ol' Justice Moody's concern about judicial partisans striking down "national legislation." Don't automatically assume that Chief Justice Roberts and Justice Samuel Alito will vote against the Patient Protection and Affordable Care Act when it wends its way to the High Court, former Reagan solicitor general Charles Fried told the Washington Post's Robert Barnes. Why would reasonable observers believe that Justices Roberts and Alito, architects of the Court' monumental Citizens United ruling last January, will strike down the new health care law? "I don't see Roberts as going for this tea party stuff," Fried told Barnes. Bully!

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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