Mort Mintz: Bush's Judges Matter to Jane and Joe Sixpack
Mort Mintz, in the American Prospect (5-27-05):
[Morton Mintz, a former chair of the Fund for Investigative Journalism, reported the thalidomide and Dalkon Shield stories for The Washington Post and, also for the newspaper, covered four terms of the Supreme Court. He is a former chair of the Fund for Investigative Journalism.]
Last month, a New York Times Magazine cover story took an in-depth and valuable look at judicial radicals. Like Janice Rogers Brown and other court nominees George W. Bush and Bill Frist are trying to ram through the Senate, these professors and think-tankers pass themselves off as conservatives. Yet they are leading what the writer called an"increasingly active" movement that seeks deregulation"in a manner not seen since before Franklin D. Roosevelt's New Deal." It's a movement that even Supreme Court Justice Antonin A. Scalia couldn't abide.
The article was impressive, partly because of the many quotes gathered from the radicals by George Washington University law professor Jeffrey Rosen. But at the risk of being accused of complaining that he didn't write the article I would have written, I'll say that very real issues of life and death for vast numbers of Americans were lost or obscured in the article despite the spaciousness of 7,265 words.
The judicial radicals want to abolish federal regulatory agencies. If they succeed, the consequences would not long be tolerated by a civilized and democratic society: ideologically imposed, needless, massive, and continuing death, injury, sickness, and environmental destruction. Yet in the article, these consequences were submerged, if not drowned in a sea of abstractions.
In arguing my case, I will focus on the Food and Drug Administration. But similar cases could be made regarding numerous other agencies, including the Occupational Safety and Health Administration, the National Highway Traffic Safety Administration, and the Environmental Protection Agency.
I was troubled, too, because Rosen, who is also legal affairs editor at The New Republic, didn't so much as mention a 19th-century Supreme Court ruling on which the judicial radicals implicitly rely. No wonder; it's an extreme example of judicial activism.
First, though, a brief recap of the"extreme thesis" that Rosen, wrote, derives from a"legal philosophy far more radical in its implications than anything entertained by Antonin Scalia, the court's most irascible conservative."
The thesis:"[A]ll individuals, [my italics, for reasons to be made clear] have certain inherent rights and liberties, including economic liberties, like the right to property [that] are protected by the United States Constitution." An individual's [my italics] right to property can be violated in various ways. One is"governmental regulation that reduces its value" without the"just compensation" required by the Constitution's Takings Clause.
The thesis and the philosophy are those of Richard A. Epstein, a University of Chicago law professor and a leader of the Constitution in Exile movement. His"simple theory of governance," Epstein wrote in an autobiography," could be expanded to cover ... all regulations [my italics]. ... It is also the recipe for striking down the New Deal."
A final preliminary note: Rosen recalled that Epstein and Scalia had clashed in 1984. Scalia"defended the view that judges should restrain themselves from overturning legislation in the name of rights or liberties not clearly and expressly enumerated in the Constitution," Rosen wrote. '''Every era raises its own peculiar threat to constitutional democracy,' he said. 'The reversal of a half-century of judicial restraint in the economic realm' -- Epstein's stated project -- 'comes within that category.'''
In the late 1930s, 107 Americans died after drinking"Elixir of Sulfanilamide," a chemical relative of a radiator antifreeze marketed as a medicine. As a result, the U.S. Congress enacted the Food, Drug, and Cosmetic Act of 1938. Thereafter, anyone wanting to sell a prescription drug had first to demonstrate safety for its intended use. If the FDA would not be persuaded, the drug that might have become a property of high value became a property of far lesser value. Thus did the law legalize government"takings" of a drug manufacturer's property. Public health and safety trumped private compensation.
Shouldn't Epstein tell us straight out whether, had he been around, he would have opposed the 1938 law? Same question for Janice Brown, Bush's candidate for the Court of Appeals for the District of Columbia, who has called the New Deal a"socialist revolution." Same question for William Pryor Jr. , William Myers III, and other Bush court nominees. Same question for other advocates of striking down the New Deal, and for two allied groups, each funded almost entirely by corporations, right-wing ideologues, and their foundations. ...