In nominating Harriet Miers to the Supreme Court, President Bush said she would "strictly interpret our Constitution and laws. She will not legislate from the bench." The president used a similar rationale for nominating John Roberts to be chief justice. But presumably his real criterion for nominating Miers and Roberts wasn't their judicial philosophies. It was their values, with which he agrees.
The social or religious values of Bush's Supreme Court nominees get most of attention, but economic values are also at stake. When Miers said last year that "[t]he future of the American economy depends on ... making the president's tax cuts permanent, lowering the costs of health care, [and] reducing the burden of frivolous lawsuits and unnecessary regulation," she was sharing a particular vision of how American society should be organized.
A central moral problem for the American economy today is that, although it has been growing at a good clip, with corporate profits rising nicely, most American paychecks have been going nowhere. Last year, the Census Bureau tells us, the U.S. economy grew a solid 3.8 percent. Yet median household income barely grew at all. That's the fifth straight year of stagnant household earnings, the longest on record. Meanwhile, another 1.1 million Americans fell into poverty, bringing the ranks of the poor to 37 million. And an additional 800,000 workers found themselves without health insurance. Only the top 5 percent of households enjoyed real income gains. These trends are not new. They began 30 years ago, but are now reaching the point where they threaten the social fabric. Not since the Gilded Age of the 1890s has this nation experienced anything like the inequality of income, wealth, and opportunity we are witnessing today.
A central moral choice, then, is whether America should seek to reverse this trend. Those who view this society as a group of self-seeking individuals for whom government's major purpose is to protect property and ensure freedom of contract would probably say “no.” Those who view America as a national community whose citizens have responsibilities to promote the well-being of one another would likely say “yes.” Is the well-being of American society the sum of individual goods, or is there a common good?
Over the next decades, the U.S. Supreme Court will play an important role in helping America make this choice. Under the guise of many doctrines and rationales -- interpretations of the “takings” and due-process clause of the Fifth Amendment, the equal-protection clause of the 14th Amendment, the commerce clause, the doctrine of federal preemption, and so on -- the Court will favor either property or community, depending on the economic values of a majority of the justices.
Even before Roberts was confirmed last week, the balance in the Court was quite close. In one recently decided case, for example, a majority of the Court said that government can take private property from one owner, compensate him or her at fair market value, and then turn the property over to someone else -- but only if the transaction is part of an economic development plan for the community and doesn't benefit a particular class of identifiable individuals. In other words, it can't be a political payoff or money grab. This logic raises value-laden questions with which the future Court will have to grapple. What, for instance, constitutes valid economic development, and how can you tell whether certain people are getting a disproportionate benefit from it? The answers will depend largely on how the justices balance property and community.
On the other hand, several years ago, a closely divided Court found that a ruling by the California Coastal Commission that conditioned a building permit on the owner granting public access to the ocean was an unconstitutional "taking" of property, because it didn't adequately further the public purposes of California's coastal land-use law. In this instance, the Court ruled in favor of property and against community, but left unanswered the larger question of how the Court should determine the public purposes of particular laws and whether a regulation furthers them. These questions are also likely to arise more frequently, as regulations almost inevitably affect the value of property being regulated.
As inequality continues to widen, the Court's choice between property and community will have larger consequences. Americans are segregating by income into cities and towns that are ever more uniformly rich, middle class, or poor. Hence, questions will be raised about equitable provision of public services. Do our poor and working-class children have the right, under the equal-protection clause, to as good an education as the children of our wealthier citizens? A future Court that says “yes” presumably would deem unconstitutional much of our present system of primary and secondary education, in which spending per child is based largely on local property taxes that vary enormously depending on whether the locale is rich or poor.
The wages and benefits of women and minorities continue to lag substantially behind those of white men in American society. And blacks and Latinos comprise a substantial portion of the nation's poor. As overall inequality widens, inequities based on gender, race, and ethnicity are becoming more visible. The link between poverty and race was never more evident than it was weeks ago in the hurricane-ravaged tragedy of New Orleans and its surroundings. A future Supreme Court will almost certainly be faced with issues of equal protection for women and minorities in public safety, public health, employment, law enforcement, housing, and health care. How it balances the values of property and community will affect the moral cohesion of the nation.
The same balance underlies how the Court decides whether rules and regulations are authorized by law. Many such laws reflect the nation's intent to protect people who cannot protect themselves on their own, and to establish minimally decent living standards for all. The National Labor Relations Act of 1935 established the right to bargain collectively, the Civil Rights Act of 1964 protects Americans against discrimination based on race or gender, and the Age Discrimination in Employment Act of 1967 against discrimination because of age. The Employee Retirement and Income Security Act of 1974 protects Americans' pensions. The Family and Medical Leave Act of 1993 allows employees to take time off for a home or health emergency. And so on.
Each of these laws represented at the time of its enactment America's moral conviction about how we should treat one another as members of the same society -- thereby offsetting inequities in wealth and power. Arguably, as such inequities have widened, each set of protections has become more important. Each has and can be enlarged or whittled down by a Supreme Court intent either on strengthening our national community or protecting property.
As secretary of labor, one of my jobs was to implement the Family and Medical Leave Act, which grants employees up to 12 weeks of unpaid leave during a family or medical emergency. The Labor Department came up with what I considered commonsense regulations that reflected the unequal power of employers and employees. Among them was a rule that even if an employer didn't tell employees they were eligible for it, eligible employees could still take the 12 weeks of unpaid leave. Yet in a 5-to-4 decision, the Supreme Court struck down that rule, saying it was inconsistent with the act and, besides, it discouraged employers from providing more generous leave. I've read the case several times and I must say its logic escapes me. I don't believe it was a matter of pure logic. It was a matter of values, and in this instance, property won over community.
Antitrust laws also regulate the balance of economic power in society, as do laws and rules affecting the financing of political campaigns. As wealth becomes more concentrated, both will become increasingly salient. As America continues to merge with the global economy, immigration laws and constitutional claims involving the rights of immigrants, both documented and undocumented, will arise with greater frequency. Hence, Supreme Court justices will be grappling with the very meaning of a national community.
The moral economic values of a single justice can therefore affect the lives of millions of Americans. One example is Justice Owen Roberts (no relation to the newly confirmed chief justice), who in March of 1937 decided to join with four justices in upholding the minimum-wage law of the state of Washington. Up until then, Roberts had been on the other side, joining his four colleagues in striking down all sorts of laws setting minimum wages and maximum hours, barring child labor, protecting workers from unsafe conditions, and establishing codes for worker standards in various industries. They had defended their opinions in property terms; to them, due process was mostly about freedom to contract, liberty was a matter of accumulating personal wealth and doing whatever one wished with it, and the commerce clause sharply limited the reach of the federal government. But after Roberts' switch, these justifications mostly vanished from Supreme Court majority opinions.
It's commonly believed that Owen Roberts switched sides because of Franklin Delano Roosevelt's threat to "pack" the Court by expanding its membership unless it upheld New Deal legislation. But in fact, Roberts' switch occurred before any of the justices knew of Roosevelt's plan. The more likely explanation is that Justice Roberts switched because the realities of the Depression finally caught up with him; community values were simply more compelling than property values. As the Court's new majority put it in the opinion Roberts joined:
"[T]he liberty safeguarded [in the Constitution] is liberty in a social organization, which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people . … The exploitation of a class of workers who are in an unequal position with respect to bargaining power, and are thus relatively defenseless against the denial of a living wage, is not only detrimental to their health and well being but casts a direct burden for their support upon the community … .We may take judicial notice of the unparalleled demands for relief which arose during the recent period of depression and still continue to an alarming extent despite the degree of economic recovery which has been achieved. It is unnecessary to cite official statistics to establish what is of common knowledge through the length and breadth of the land."
The challenge now facing America is different from the one it faced in the 1930s, of course. But the rapidly widening inequalities of wealth, income, and opportunity confronting us pose no less a risk to the social fabric and moral integrity of the nation. Will Chief Justice Roberts and, if she's confirmed, Justice Miers understand this? It is unnecessary to cite official statistics to establish what is of common knowledge through the length and breadth of the land.
Robert B. Reich, a Prospect co-founder, was U.S. Secretary of Labor under Bill Clinton. He is University Professor of Social and Economic Policy at Brandeis University and a professor of public policy at the University of California, Berkeley.
