Checks and Balances | Alison Gash | WINGS


So I’m working today with sort of a new approach which is to just have a bunch of slides up here at one time. And so we’re going to sort of read this like we would text, going from left to right, the top row and then the bottom row. So bear with me as we move through this awesome visual that’s provided by our 503. So we just talked about geological earthquakes. I’m going to talk to you about political earthquakes. And specifically what I want to talk about or sort of think through is what would an early warning system look like. For the downfall of democracy and particular for the downfall of checks and balances. What would it look like. I don’t know about you but whenever I see a movie that sort of predicts, right? You see the television shows and the news coverage in these sort of post-apocalyptic or apocalyptic movies and you think, “how did they not know that life was going to fall apart in that very moment?” And so I wonder, what would it look like? What would we need to know in order to know that something was amiss with our system of checks and balances? And I would argue that one primary symptom, a good symptom to look for would be the collapse of the rule of law. Right. Or the sort of collapsing of the value of the rule of law. And one way to figure out if we no longer care about the rule of law is to look at the ways in which there is an erosion of judicial independence. And so that’s what I’m going to talk to you about tonight. So the court does really important things. For a lot of you in the room, there’s concern about the court in terms of particular policy issues. So if you are a pro-choice Democrat you’re nervous. If you are committed to marriage equality you’re nervous. Folks who are committed to climate change might be equally concerned. And of course folks who are pro-life who are opposed to marriage equality might feel like this is your time; This is your court. But I’m not going to talk about those things tonight, because what I want to talk about tonight is the court’s capacity to actually protect the system of checks and balances that is in fact the the foundation, the essential ingredient to our democracy. And so when we’re talking about checks and balances or we’re talking about the court’s involvement. We’re talking about the courts capacity to maintain a bunch a really really tense and tenuous relationships that exist in government. So I want to point your attention to this middle upper slide called “We The People”. So the the founding fathers in their infinite wisdom created a really sort of complicated, messy, chaotic system of governance. And the idea behind it was if there were lots of different small broken pieces of government clashing with each other, that change would be hard to do. Right. We don’t want easy change. That change would be deliberate. And that everybody in a given moment of time will get their say. Right that was sort of the point of this sort of chaotic mess. But that there was concern that this mess would be sort of hard to handle and that the rule of law would get somehow subsumed in the squabbles that exist between these different levels of government and different institutions. And that’s where the court steps in. To make sure that these relationships stay balanced, no matter how tenuous and tense they may be, that they stay balanced. And so when we talk about, for instance, the idea of horizontal separation of powers. It’s the upper row of these institutions. We’re talking about making sure that Congress does what it does and only what it is constitutionally permitted to do. And that the president does what he or she does and only what he or she is constitutionally permitted to do. So an example would be, sometimes Congress will pass laws giving, for instance, war powers right to the president. The court says you can’t do that. Congress has war powers. Congress has the power to declare war alone. And the president does not have that power. And it is unconstitutional for the president to take that power. There might be times when the president decides that he or she is going to declare an executive order for things like birthright citizenship for instance. I don’t know. I’m just I’m just spit balling. And the court will weigh in, not just on the equal protection elements of that question, they will weigh in on whether that is an actual power that can be exercised by the president. Is that an appropriate use of executive power? Another tense relationship that the court gets involved in is this relationship between the federal government and the states. So we would call this vertical separation of powers. Another name for that is federalism. There was a concern at the founding that the states were not going to have as many rights as they needed. And so there was a lot of concern about the capacity for Congress, the capacity for Federal Government, for national government to become too big. And so the founding fathers actually went to great lengths to make sure that Congress had a small job and one small job and that was actually protecting interstate commerce. Everything else that dealt with domestic policy was supposed to go to the states. Now of course things got messed up along the way. Commerce got a lot bigger, now we do everything under the realm of commerce. And so this relationship between the federal government and the states has become even more tenuous than ever. Now of course when we think about states’ rights, we think rightly so of a really ugly institution called slavery. We also think about the increase in sort of confederate pride that we’ve seen in places like Charlottesville. But we also need to remember that we should also think about things like climate change. And California’s leadership, not just in the nation but in the world. And that that is a state’s rights protection. That is states’ rights autonomy being practiced. We think about things like sanctuary cities, we think about things like marijuana legalization. These are all done under the rubric, under the structure, under the opportunity of states’ rights. And these are all powers that are protected by the court. To make sure that the federal government doesn’t intervene in those matters and limit the power of states to have a say in the sorts of policies that they create. And of course one of the most important relationships that the court protects, one of the most important checks is making sure that the all of government doesn’t infringe upon the rights of the people. One of the most paramount rights is the right of individuals to vote. The right of individuals to express themselves. In particular, the right of individuals to express dissatisfaction with their government. Because after all, the Founding Fathers argued that the power rests with the people, and the only way for the people to be an effective check on government is to be able to be fully informed, to be able to freely debate and to be able to freely vote. Who protects those rights? The court protects those rights. So the court has lots of important things to do in the realm of checks and balances. And at every turn, at every moment, those rights, those institutional obligations are imperiled by politics; Politics. And the founding fathers understood this, and this is why they gave the court two things. They made them independent. They made the judiciary a third branch. And they gave federal judges lifetime tenure. Because they wanted judges, they wanted federal courts to answer not to politics, but to the rule of law. Now courts are powerful. The Supreme Court in particular. So we can think of the Supreme Court like a referee in a Ducks-Huskies game right. No matter how contentious each side is, no matter how badly each side wants to win. When the ref blows that whistle makes a call, teams stop and they listen. And the courts are like that. So when when the court told Nixon you got to hand over your tapes, I’m not sure why you tape recorded all those conversations, but you’ve got to hand them over. Nixon abides. Nixon says I see the writing on the wall, I am now going to resign. When Earl Warren decides that he’s going to desegregate schools. When he in fact convinces each and every justice on the Supreme Court, even those who were fully supportive of segregation, to in fact support desegregation. To issue a unanimous verdict in Brown VS Board of Ed[ucation]. Eisenhower, who is not a fan of desegregation, nevertheless sends in military, sends in federal forces, to help with desegregation. That is about the power of the court. And when in 2000, the court decides to halt the counting of votes in Florida. Giving George Bush the edge in an ongoing process of counting ballots in Florida. Gore does not contest, Gore does not fight, Gore does not “rage against the machine”, Gore concedes. Gore says, “I am going to go ahead and concede the election, because the court has spoken, and because I believe in the rule of law”. That is about the power of the court. The problem is, and we’re going to head on down to the bottom row, where we see the angry donkey and the angry elephant. The problem is that although the rule of law, although the courts have the power to at least intervene in these moments of deeply deeply toxic partisanship, their power is tenuous. Their power is a little bit like that wall. It’s there, it’s structural, but it’s a little lopsided, it’s teetering a little bit, it’s got some holes in it and it needs some support. And the reality is for the court, contrary to what we I think to be true: The court’s resources, the court’s power, the courts strength in intervening, in sort of getting in the middle of this toxic partisanship. It is not derived from the Constitution. It’s actually derived from the power that we give it. From the expectations that courts have the power to do these things, from the expectations that courts are legitimate sources of authority and autonomy. The court’s power is given, is collected, by each and every decision that they make. And by every time that we follow the rule of law. So what are the resources that the court has? The court can only be persuasive, as Hamilton says, “the court has neither the sword nor the purse, merely judgment”. The only power that the court has is to convince us that its rulings are sound, even when we oppose them. Even when we oppose them. How can they be persuasive? They have to be neutral. They have to be neutral. They have to be independent. They have to be apolitical. So when Ruth Bader Ginsburg, and let me just tell you I have a poster of Ruth Bader Ginsburg in my office, I am a diehard RBD fan. But when Ruth Bader Ginsburg says that Trump has an ego. When she says that he’s a faker, and when she further publicly admonishes his presidency and his campaign, is that apolitical? When Justice Kavanaugh, or then Judge Kavanaugh, argues that the hearings for his particular justiceship are the rantings of some crazed Democratic left-wing conspiracy that is motivated by the Clintons, is that apolitical? What happens when justices continue to behave in ways that appear to be deeply partisan and deeply political? When the Senate refuses to consider the nomination of a perfectly qualified judge simply because the president who nominates that judge is a member of a different party, is that neutral? Is the court independent in that moment? And similarly, when the Senate decides to use one single issue and one single issue alone to determine whether or not a judge is in fact qualified to serve on the Supreme Court, is that independent? Is that independent? Is that neutral? Now of course one of the most or several of the most critical foundations for the power of the court comes from us. First we need to comply with judicial rulings. We have to even, if we think they’re terrible. But second and third the most important, and those are the norms of the rule of law and our commitment to checks and balances. Now some folks might think, well the rule of law is not a norm it’s just what we do, we abide by law. That’s a norm. That’s a norm. So it is the norm of the rule of law that keeps Congress from passing legislation that would allow the president to pack the courts. Hasn’t been even thought about since the Great Depression, but it used to happen with a fair amount of regularity. The president could nominate a whole bunch of justices to the Supreme Court. If Congress opened up the number of justices to a number that allowed for an appropriate amount of partisan judges to abide by the legislation. It is the rule of law, the norm of the rule of law, the commitment to checks and balances that has stopped Congress from limiting the jurisdiction of the Supreme Court. Preventing it from weighing in on particularly contentious battles. It is the norm of the rule of law, and our commitment to checks and balances, that has kept the court independent all this time. Now that might seem frightening. Because of course when we see the frequent collapsing of these norms in politics, we have to wonder, is the norm of the rule of law next? But we have hope. We have hope in two things: Justice Roberts. I should tell you I am a Love Wins, Science is real, Black Lives Matter, liberal and I love Ruth Bader Ginsburg. But when I talk about checks and balances, my hope is pinned on Justice Roberts. He is what we call an institutionalist. He is somebody that believes strongly in the court’s role in arbitrating over these conflicts dealing with checks and balances. So when he came out recently to say, don’t worry, do not worry we’ve got your back, we are going to uphold the rule of law despite all of this deep partisanship. I believe him and there’s reason to hope that he’s going to be able to hold that together. The second hope: federalism. The Supreme Court is not the only game in town. States matter, states are powerful, state courts are powerful sources of the rule of law. And even though the national stage seems to be committed to eroding judicial independence through highly partisan nomination processes, state courts continue to move forward. Thank you very much.

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