As everyone should be well aware, Eric Holder- the Roland Freisler of the Obama administration- recently announced to the Urban League that he would seek “preclearance” of any election law changes in the state of Texas. The reason, he claims, is because of persistent discrimination against blacks and Hispanics in that state when it comes to voting rights. There was a time when the Supreme Court would make a controversial ruling and the Executive branch would voice their disagreement, but then respect the decision and enforce it. Sometimes, the Executive branch would actually work with the Legislative branch to correct the imperfections in the law struck down by the Supreme Court. In the former instances, two cases come to mind. When Brown v. Board of Education was decided in the mid-1950s, it was actually the Republican Party that was at the forefront of civil rights legislation in Congress. We can certainly debate whether Eisenhower, who was then President, supported Brown with all his heart. His reaction was tepid and most historians painted him as aloof to when it came to civil rights. But subsequent narratives, mainly that of historian David A. Nichols, shows that Eisenhower- unlike Truman, Kennedy or Johnson- was a man of quiet action, not words. His narrative shows how Eisenhower quietly crafted a coalition in Congress to pass the first civil rights legislation in over 80 years and how he finished the integration of the military begun under Truman. Most liberal treatments of Eisenhower show him as a recalcitrant President who mishandled the situation in Little Rock to the point that federal troops had to intervene to integrate the schools there. However, Nichols shows that Eisenhower deftly avoided open confrontation with Orval Faubus, the governor of Arkansas. In short, Eisenhower was more a man of action and more of a leader than Obama can ever hope to be.
The other case is Nixon’s reaction to Roe v. Wade. Although he made no public statement, subsequent release of White House tapes indicate disagreement with the decision. He argued that it would lead to more “permissiveness” and create a breakdown of the American family. Although racist in tone, he agreed that abortion, however, may be acceptable and necessary in certain cases. Regardless, the reaction to Roe was one of non-reaction unlike later Republican presidents who were pro-life. Thus, although he had misgivings, they were not openly expressed and his administration did not attempt to set the “dogs of Justice” loose on the decision.
The other instance is where the Executive works with the Legislative to change the law. Such was what happened in the more recent Ledbetter case which Obama today touts as his. To recap, the Supreme Court ruled in this case that the statute of limitations for making claims of unequal pay for equal work began basically with the first instance of the inequality. The decision was nothing but one of statutory interpretation based on the original law. Was it defective? Absolutely, as the Court explained. Could it be changed? Absolutely, as the Court further explained. And, in fact, under George W. Bush, Congress and the President sought to do just that. Politics intervened to delay its ultimate passage until 2009, thus allowing Obama to make his current claims that HE had the law passed, but it was Bush who started the ball rolling and it was Obama who received the applause for signing the law into effect. However, the larger point is that the Executive worked with the Legislative branch instead of ignoring the Supreme Court decision.
This stands in stark contrast to how Eric Holder handles Supreme Court decisions and how Obama handles them. Looking back at these cases, did Eisenhower stand before Congress and chastise the Supreme Court for the Brown decision, assuming he disagreed with it? Did Richard Nixon address Congress decrying the Roe decision and attacking a compliant Supreme Court sitting before him? Did George W. Bush, in a State of the Union address with Justices looking on, tell them they were wrong in their decision? Yet, Obama did just that in his State of the Union address when he took on the Court over their decision in Citizens United.
Words before Congress are one thing, but actions are another. At least with Citizens United, Congress attempted to pass, with Obama’s blessing, the ill-fated DISCLOSE Act- a laughable acronym that seriously twists the English language. The most recent example of the Obama/Holder disdain for this Supreme Court is exemplified in the recent Holder announcement that he was going after the state of Texas. This comes less than two months after the Supreme Court ruled in the case of Shelby County, Alabama vs. Holder which invalidated the formulas used to determined covered jurisdictions for Voting Rights Act enforcement. In short, he is acting as if the Supreme Court never ruled on the issue. Thus, he is moving to have any election law in Texas challenged.
In practical terms, this is nothing but show. The most likely scenario is that Holder will find some District Court judge to agree with him whereupon the state of Texas will immediately appeal for injunctive relief (which will be granted) and an Appeals Court, being bound by Supreme Court jurisprudence, will dismiss the actions by Holder. In fact, there is a 50/50 chance Holder will even prevail at the District Court level. Again, this is a big show by Holder and Obama in their never-ending, relentless campaign of pandering to the minority community. Besides this instance, there is their interference in local issues out of Boston and Sanford, Florida and Obama’s inability to keep comments to himself when it comes to race. Besides the comments, he then has Holder, his “action man.” For someone who claims to be a constitutional scholar, Obama and Holder have a lot to learn about the Constitution.
In another case recently decided- Adoptive Couple vs. Adoptive Baby- the Court ruled that the Indian Child Welfare Act did not automatically confer parental rights upon a Native American parent in an adoption proceeding. The father, living in Oklahoma and a member of the Cherokee nation, sought to have full custody of the child, who is now almost four. The South Carolina Supreme Court, in an effort to end the case, has granted full custody to the adoptive parents even though neither a tribal court or a court in Oklahoma have not rendered a decision in his petition yet. The South Carolina decision was 5-0 although two members believed that the Family Court should have final say. For their part, the adoptive couple has proposed a transitional plan of joint custody that would delay their full custody of the child. For all intents and purposes, the father in this case, although sharing DNA with the child, has been anything but a father to the child and essentially divorced himself from any parental responsibilities for the first two years of that child’s life. This is, without a doubt, a highly emotionally-charged case and is illustrative of how and why adoption in the United States is convoluted and confusing and why it is simply easier to go to China or elsewhere and adopt a child.
The final case is the Fisher vs. University of Texas-Austin affirmative action case where the Court ruled that the lower District Court should not have summarily dismissed Fisher’s claim. The state of Texas feels that their admissions program stands a better chance in District Court than in the Fifth Circuit. However, Fisher’s lawyers claim that the Supreme Court’s decision makes it clear that Fisher can pursue her legal claims and that the ultimate decision of whether the university’s admissions practices are constitutional should be decided by the Appeals Court, not a District Court. Traditionally, District Courts are the venue for fact-finding, a point made by the state of Texas in their briefs with the Appeals Court. They now claim that their system would pass constitutional muster and will be further bolstered by additional facts. Fisher, on the other hand, is saying that the fact-finding is done and that the middle man- the District Court- should not be the venue for appeal. Fisher’s lawyers claim that the time for fact-finding is over and it is time to address the constitutional issues at stake, namely whether the University’s taking into account the race of applicants is constitutional in light of the Supreme Court’s decision. If one remembers, this case, when taken by the Supreme Court, did not directly take on the constitutionality of taking into account race in college admissions, There was no call for overturning previous decisions in this area such as Grutter, Bollinger, or Bakke. Instead, this was originally presented as a jurisdictional case and whether the District Court should have granted summary judgment dismissing Fisher’s claim, a decision upheld by the Fifth Circuit Court of Appeals. In essence, Fisher’s lawyers are now saying “let us get to these constitutional issues.”
There is a possibility, since the Supreme Court did not reach the more serious constitutional issues, that this case may yet again end up before the Supreme Court in a future session. Remember that this is not unusual. The FCC indecency standards involving “fleeting expletives” and the Janet Jackson millisecond of boob controversy as well as the Comcast class action suit out of the Third Circuit were dealt with by the Court on several occasions before some final outcome was derived. Most of the time, intervening decisions and standards, like those of the FCC in the indecency cases, render the Supreme Court’s actions all but moot. By the time Fisher may again reach the Supreme Court, the University of Texas may change or modify their admissions practices with respect to race.
Recently, the Wall Street Journal ran an article on the performance of the Obama administration before the Supreme Court. As that article mentioned, we tend to focus on the 5-4 decisions like the administration’s victories in the gay marriage cases or the majority of the Obamacare cases (the Medicaid expansion aspect was an administration loss). However, there were several cases where the administration’s position, mainly seeking broadened Executive branch powers, was shot down in a 9-0 decision ball of flames. One decision caused Justice Kagan to describe the administration’s position as “shocking and disturbing.” The California raisin case and the Arkansas Takings Clause case from the most recent term immediately come to mind. In fact, the administration, despite some high profile victories, has a dismal before the Supreme Court, prevailing in less than 50% of the cases where they have taken a position over the past two terms. On occasion, we all tend to rail against Supreme Court decisions. Even at this site, the criticisms directed at Roberts in the wake of the Obamacare case was palpable- some rightfully so. However, taken in its totality, one has to thank the Supreme Court for being a check on an overzealous Executive branch, which is exactly what our Founders envisioned. Of course, they believed that the Executive branch would respect, not disdain, the Judicial branch or, at the very least, work with the Legislative branch. In short, our Founders in that hot summer in Philadelphia never envisioned a Barack Obama, let alone an Eric Holder. Make no mistake- past presidents have ignored Supreme Court decisions in the past. Obama and Holder just take it to a new level.