The job of the courts is to resolve disputes in a reasonable way and so keep the peace in our society. The preamble to the U.S. Constitution says one of its purposes is to “insure domestic tranquility” and the federal courts were created with that purpose in mind.
For that reason, it is dismaying to find in recent U.S. Supreme Court opinions accusations that those who hold opposing views are not just wrong, but are also racist. The opinions themselves addressed subjects that have no obvious connection to racism: judicial review of federal agency action and the constitutional right to abortion. And the opinions in question do not establish any such connection. They just engage in schoolyard smear tactics.
In the federal agency case, the court held that a law authorizing the EPA to craft a “best system” to reduce carbon dioxide emissions did not permit the EPA to set a goal for converting coal plants to nuclear or solar sources. The court invented a novel and controversial doctrine that allows courts to scrutinize agency action more closely any time it addresses a “major question” of political or economic significance. It has long been thought that the job of judges was to look to the law, not to politics, but that has apparently changed.
Justice Neil Gorsuch concurred in an opinion joined by Justice Sam Alito. Justice Gorsuch sought to elaborate on how the “major question” doctrine might be used to cut back on what federal agencies may do. The opinion expresses a hostility to federal agency regulation not seen in the Supreme Court since the 1930s. Even though it has long been accepted that Congress created agencies staffed with technical experts to deal with problems that Congress can only address in general terms, such as regulating the federal monetary system or ensuring the safety of food, drugs, and consumer goods, the Gorsuch opinion disparages the very idea that agency expertise might be useful.
For example, it calls civil servants who work in the executive branch “a ruling class of largely unaccountable ‘ministers.’” That is an odd statement for a federal court judge who enjoys a lifetime appointment and no accountability to anyone. Civil servants are in the executive branch which is, after all, accountable to Congress and to voters who elect the president. The Supreme Court is accountable to neither.
But Justice Gorsuch does not stop there. His opinion begins its attack with skimpy acknowledgement that others have said agency expertise is useful. To that it adds a footnote citing an article President Woodrow Wilson wrote on the value of expertise. But the footnote then discounts what Wilson had said by suggesting that Wilson thought experts were needed because he believed voters were foolish, black people were ignorant, and people from the south of Italy lacked intelligence.
This is a cheap shot that does not belong in a court opinion. Wilson’s argument, written in 1887 to encourage the development of a civil service system, was that, where the people are sovereign, citizens who are ignorant must be educated before they will want change. He did not question popular sovereignty. The need for a civil service did not arise from voter ignorance but from a desire to end a corrupt spoils system. The agencies created during his subsequent presidency, the Federal Reserve System and the Federal Trade Commission, showed his belief that federal agencies could improve government was justified.
And his comments on ethnic groups, written more than a decade later, had nothing to do with his argument for government expertise. In a history of the United States, he described the uneducated freed slaves in the south in 1870 as being ignorant and therefore subject to political manipulation. He did not apply that adjective to the entire race. And in describing immigration to the United States, he said that some immigrants were “men of the lowest class out of the south of Italy” who lacked intelligence, not that all south Italians lacked intelligence.
The point is not that Wilson was progressive on the issue of race. He was not. While he advocated for women’s rights and was the first president to speak out against lynching, he held racial prejudices common in his day and, as a Democrat, presided over the removal from federal agencies of some African Americans appointed by Republicans and the segregation of the Post Office and Treasury.
The point is that his prejudices had nothing to do with whether it makes sense for Congress to delegate to executive agencies a wide variety of tasks, including protection of the environment from carbon dioxide and other pollutants.
The other accusation of racism is found in Justice Alito’s decision in the abortion case, Dobbs v. Jackson Women’s Health Organization. In a footnote, the opinion attacks advocates of abortion by suggesting that they want to use it to suppress the size of the African American population. The opinion says it is not endorsing that view, but, if the view is not being refuted, why is it even being expressed?
Judges constantly counsel lawyers to argue their cases on the merits, and to avoid arguments that their opponents are bad people. The justices of the Supreme Court would do a better job of ensuring domestic tranquility if they followed that example.
Luther Munford is a Northsider. He practiced law in Jackson for decades.
