Congress Behaving Badly

By Dahlia Lithwick and Richard Schragger
Sunday, October 8, 2006

While the language of addiction has become the catch-all excuse for bad personal behavior of every sort, it's worth invoking in one more context: the constitutional one. Please do forgive the U.S. Congress its atrocious behavior. It's not a bad institution, per se. It's merely addicted to judicial review.

Just days ago, we watched as several senators voted for a bill to redefine the treatment, detention and trials of enemy combatants, even as they expressed doubts about its constitutionality. The measure to set up military tribunals for enemy combatants contains, among other constitutional infirmities, a provision to strip courts of their power to review the constitutionality of the detentions. A number of senators contested this provision, which would suspend the writ of habeas corpus for current and future detainees, but the amendment that sought to excise it from the final bill failed by a vote of 51 to 49.

Before that vote, Sen. Arlen Specter (R-Pa.), chairman of the Judiciary Committee, announced, "I'm not going to support a bill that's blatantly unconstitutional . . . that suspends a right that goes back to 1215," and the Magna Carta. He added, "I'd be willing, in the interest of party loyalty, to turn the clock back 500 years, but 800 years goes too far."

Specter's justification for then voting for a bill he deemed unconstitutional? "Congress could have done it right and didn't, but the next line of defense is the court, and I think the court will clean it up."

There is some irony in this congressional willingness to see the Supreme Court as a kind of constitutional chambermaid -- an entity that exists to clean up after Congress smashes the room. It is especially ironic when it is articulated by members of Congress who like to invoke judicial restraint as a constitutional value. But it is beyond ironic, and approaching parody, when Congress asks the court to clean up a bill it knows to be unconstitutional, when the bill itself includes a court-stripping provision.

Criticizing the court for overturning the laws passed by Congress -- as Specter did repeatedly during the confirmation hearings for John G. Roberts Jr. and Samuel A. Alito Jr. -- is fair. But crying "judicial activism" at the same time you rely on the courts for political cover when you're too timid to defy the electorate -- or your president -- is hypocritical.

Why should the Supreme Court defer to a Congress that adopts laws it suspects are unconstitutional? And what should we think of those elected officials who would take so cavalier an attitude toward their oath to uphold the Constitution?

Members of Congress take the same oath as Supreme Court justices do, after all. And Congress regularly asserts its institutional capacity to interpret the Constitution -- to act on an equal footing with the Supreme Court in deciding the constitutionality of a law. Moreover, the justices are supposed to assume that Congress never intentionally adopts an unconstitutional law, and you need attend oral argument for only a few moments to know how seriously they take that charge. So how is it possible that an oath-bound member of Congress can support a law that he or she believes violates the Constitution?

Congress gives in to the temptation of passing bills that are of questionable constitutionality because it's easy and convenient. Political expediency seems to trump constitutional principle. The elected branches need never defy the popular will if the courts are available to do so instead. And those members of Congress who insist that the courts should stay out of Congress's business should recognize Congress for the enabler it has become. It's a two-way street: The courts work with what Congress sends them and sometimes Congress purposely sends them unconstitutional legislation, because it is politically expedient to do so.

That's why lawmakers who know that legislation to ban flag burning violates the First Amendment regularly trot it out anyway. It is an easy way to mollify voters, while letting some other branch grapple with what the Constitution requires. As a bonus, lawmakers then can blame the courts for usurping the will of the electorate, turning an ordinary political pander into an Olympic-worthy double-pander.

So instead of pointing fingers at the court, let's call the whole relationship what it is: dysfunctional. For all its railing against the court, Congress sometimes relies on it to achieve substantive aims. The court, sheltered from political fallout, can sometimes afford to be brave when Congress cannot. But this suggests that cries of "judicial activism" from the Congress should be suspect. As is the case in any dysfunctional relationship, Congress has a vested interest in being upheld when it wants to be, and struck down when it needs to be bailed out.

The popular debates about the terms and parameters of judicial activism or restraint must be understood in institutional terms. Congress behaves strategically. When it is convenient, members of Congress will praise and advocate judicial restraint, and when it is not, they will hope for "activist" judicial intervention. Specter's argument during the Alito and Roberts hearings bears this out. It distressed him not that the court was too activist in striking down acts of Congress, but that it was too activist in striking down the wrong acts of Congress. Yet this judicial backstop serves his goals when he is unwilling to make the call.

The strategic use of the court reduces accountability, it corrupts the lawmaking process, and it is deeply cynical. Lawmakers should take their constitutional obligations seriously. And if they do not take their own obligations seriously, then they have no right to criticize the judicial branch when it does.

Should the Supreme Court bail out Congress for the unconstitutional provisions of the new detainee legislation? Once again, it has no choice. But the real question is whether the public should bail it out. We can always choose not to.


Dahlia Lithwick covers legal affairs for Slate, the online magazine at www.slate.com. Richard Schragger is a professor at the University of Virginia Law School.

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