America: Clinton takes on the court

Hilary Clinton has made one of her most political interventions in months.

It was a measure of how tedious coverage of the 2016 presidential race has already become that so much of last week’s news cycle in the US focussed on Hillary Clinton’s encounter with a stray shoe. Numerous outlets covered how Clinton handled the assault, as well as the identity of her attacker.

As it happened, Clinton’s brush with the offending footwear came just days after she made one of her most political interventions in months. 

Speaking in Oregon last Tuesday, the former secretary of state launched a stinging attack on the Supreme Court’s decision to further relax campaign spending limits, warning that at the rate its conservative justices were going, there would only be “three or four people in the whole country” needed to finance the entire political system.

The fact Clinton chose to make such an intervention was striking. It showed her willing to challenge the court as a political entity, and more eager than President Obama to highlight the implications of its rulings.

Clinton and her closest allies have been attacking the rulings of America’s highest court a fair amount lately. When chief justice John Roberts led his fellow conservative justices in gutting part of the Voting Rights Act last summer, Mrs Clinton lashed the majority opinion in stark terms, saying it was based on a “phantom epidemic of voter ID fraud”. Only this past week former President Clinton made a similar intervention, alleging the VRA judgement was a means of “restricting the franchise after 50 years of expanding it”.

Secretary Clinton has in the past also taken strong exception to the judicial philosophy lying behind many of the Roberts court’s decisions. When she ran for president in 2007, she set herself against Supreme Court judges looking to “undo the 20th century”, telling the Des Moines Register that President Bush’s two appointees were seeking to skew the judicial system towards corporate and executive power.

During that interview, Clinton went on to do what few Democrats – including President Obama – have done in recent years and challenged the notion that the constitution was a document “frozen in the 18th Century”, describing it instead as a growing set of principles.

She also indicated she saw control over court appointments as essential for achieving policy goals and for determining “how we live, how we work [and] who has power”.

During his time in office, President Obama has largely shied away from taking on the Supreme Court ideologically. His verbal volleys against it have been limited to individual cases and, as Jeffrey Toobin has noted in his book The Oath, he deliberately shied away from adding outspoken liberal thinkers to its ranks.

This owes something to Obama’s view of where political power lies in America. A man who taught constitutional law before jumping into elected office, he believes policy should be made in the legislative rather than the judicial arena.

Mrs Clinton, by contrast, sees the law through very different lenses. Having practiced for a law firm in Arkansas in an era when conservatives were beginning to follow liberals in using the courts to attain policy goals, she knows exactly how important decisions made in the judicial system can prove in everyday life.

During her 2007 interview, Clinton was at pains to say she was not going to engage in “judge-bashing”. As Obama has found out with his limited interventions on judicial matters, even the slightest hint of an attack on the Supreme Court can lead to charges a politician is seeking to pervert the separation of powers.

And yet, it is naïve to assume the American judiciary is above politics, or at least the politics of ideological principle. Under Roberts’ leadership, this court has redefined the constitutional authority of Congress, rewritten campaign finance legislation and effectively awarded itself greater oversight of affirmative action.

Politicians like Clinton have every right to critique such moves and warn the American people about the impact they will have.

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