One of the longstanding criticisms of liberalism going back to its heyday involved the extent to which it relied on the courts to gain victories that could not have been achieved legislatively. School desegregation, abortion rights, and less well-remembered anti-miscegenation laws, struck down by the Warren Court in its Loving vs. Virginia decision of 1967, were all judicial triumphs for liberalism, not legislative ones. Advocates of each cause chose to go through the courts specifically because they knew that the odds on achieving these goals through legislation were slim.
The criticism -- to which there is a lot of validity -- is that getting too far ahead of the popular will, as these and other decisions did, created backlash. And of course it was exactly that backlash, exploited by Richard Nixon and Ronald Reagan (and still being exploited today), that contributed to liberalism's decline. Time has long since caught up with the Warren Court, if not on the still divisive issue of abortion, at least on racial questions. No one today would argue that Loving or the more historic Brown v. Board of Education were wrong, indeed, I would argue that it took a lot of courage for the Supreme Court to hand down these decisions. Nevertheless, the criticism has validity because undergirding it is the assumption that legislative action more accurately reflects the people's will.
But that assumption is being mightily challenged in the waning days of the current Congress. Yes, the Republicans won their majority fair and square over the course of the last decade (fair and square except for the possibly illegal Texas redistricting). But they seem awfully less interested in conducting the people's business than their movement's.
Just last week, Republican congressional leaders made three power moves -- just because they could. Senate Majority Leader Bill Frist threatened to break decades of tradition, which developed when both parties were in power, and employ a rarely used procedure (called "the nuclear option") to prevent Democrats from mounting a filibuster against any judicial nominations. The GOP has played this whole debate with admittedly masterful cynicism, making the Democrats look like "obstructionists" even though nearly 200 of George W. Bush's judicial nominees have been approved and just a handful have been blocked.
Second, they tossed into a spending bill a provision that would greatly expand an existing law by which hospitals and other health-care providers could deny abortion services to women and still receive federal funding. And third, they tried to sneak into the same bill a provision that would have allowed certain committee chairs and their staffs a carte blanche access to the tax returns of individual tax payer. On this last one, some unknown, eagle-eyed, and probably Democratic staffer caught the provision, buried deep in a several-hundred-page omnibus bill. A few Republicans feigned outrage, and a smaller few actually were outraged. But while Republicans promised to back off this proposal, there's little doubt the effort was deliberate. All this of course comes in the wake of the incredible DeLay rule, which again breaks all precedents and would permit House Majority Leader Tom DeLay to retain his post if he's indicted.
Well, they're the majority. The people elected them, and they're merely reflecting the people's will, right?
Uh, no. On each of the three matters in question, it's hardly clear that a majority of Americans back what the GOP tried to do. Americans don't want their elected officials to be prevented from having an honest debate about extremist judges; a majority of Americans still support the right to an abortion, and if their feelings are complicated on this issue, it seems safe to say that a majority would rather not see law on so important and contentious a question changed by sneaking a provision into a bill about something else. And I'm reasonably confident that a decisive majority doesn't want representatives poring over their tax returns and leaking juicy or embarrassing information to the media when the time is right.
So legislation doesn't always reflect the people's will. This has always been true to some extent, and no doubt there were Democratic excesses in earlier times (although it's worth remembering that in the 1960s, there were literally twice as many Democrats as Republicans in both chambers of Congress, so it was far clearer then that the people had decided that they wanted the Democrats to exercise power; also, don't forget that many of the Republicans, from Charles Percy to Everett Dirksen to Jacob Javits, were pro-civil-rights moderates).
But no congressional party has governed like this in modern American history, because today's Republicans are less interested in the will of the people than in awarding their large contributors and pursuing their ideological crusades. They'll use their majority for those purposes far more than they will for thinking seriously about the will of the majority and acting on that. And they'll rub the opposition's face in it to boot, as they did in such tawdry fashion last week when not a single Republican bothered to show up during the floor speeches bidding adieu to Tom Daschle, who gave a quarter-century of his life to the body.
Legislative action confers popular legitimacy that judicial action does not. But that's only true if the legislators are legislating responsibly. I seem to recall the idea being that the legislators were supposed to respond to the people. With this bunch, it's the other way around.
Michael Tomasky is executive editor of The American Prospect.
