The Deliberate Dismantling of Accountability in U.S. Politics

Democracy in little more than name beckons.

Baked into the fabric of American political life is a reverence for the Constitution that is difficult to compare to any other nation with a written constitution. The centrality of the Constitution to the operation of America’s political institutions, and to the yet unresolved foundational battle for rights, liberty, and equality for all, has placed the U.S. Supreme Court in a unique position to influence American society over a longer timeframe than any other institution of state.

Consider that currently, the average years of service for members of the House of Representatives is 8.9yrs; in the Senate the average is 11yrs. The presidency runs in 4yr cycles with a maximum, after institution of the term-limit by President Franklin Roosevelt, of 8yrs. But since 1970, the average tenure of a Supreme Court Justice is 26yrs. In comparing the life-course of the respective branches of state, therefore, the Supreme Court is orders of magnitude longer than the legislature or the executive.

Little wonder institutional capture has been an overt aim of the Republican Party since the Reagan administration. And with the confirmation of Amy Coney Barrett, so it was finally achieved. The issue now isn’t only that the Supreme Court has a far-Right (deserving of the prefix “far” here based on total dismantling of the Voting Rights Act) majority with open religious allegiances, and all of the implications that holds for hard-won women’s rights and other equality issues. There are political implications for the separation of powers which provide a strong undercurrent to pull American political power further away from democratic norms.

To understand why this is the case, we must consider:

1. the origins, concept, and evolution of what is known as the “unitary executive theory”;

2. the Supreme Court as an engine for change in U.S. society;

3. the legislature and executive as minority-rule institutions.

In 1988, Justice Antonin Scalia delivered the sole dissenting opinion in the case of Morrison v. Olson, in which he stated an interpretation of the Constitution popular in conservative legal circles:

‘To repeat, Article II, 1, cl. 1, of the Constitution provides:

“The executive Power shall be vested in a President of the United States.”

As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power.’

A face-value reading of the dissent would make it seem as if the separation of powers was of paramount concern to Scalia. However, the implication that “...all of the executive power” is to be vested in the office of president alone in fact extended beyond the separation of powers, which in principle is about checks and balances against undue levels of power concentrating in any one branch of state.

As Stephen Vladeck of the University of Texas has highlighted, Scalia was a Republican appointment to the Supreme Court at a time when conservative legal scholars were embracing this very Constitutional interpretation, one which situates executive power in the Oval Office alone: this is known as the “unitary executive theory”. The unitary executive theory sees any impediment to the ability of the president to exercise executive functions as de facto unconstitutional.

However, this interpretation has not been the norm throughout Constitutional history, with the historically ascendent interpretation being one which situates executive power in the wider executive, i.e., the federal administrative state, and sought to check against an unaccountable chief-executive. The genesis for considering the balance of powers through the prism of protections against an unaccountable chief executive was the 1866 Supreme Court decision in Ex Parte Milligan.

In Milligan, the Supreme Court ruled against President Lincoln in relation to the establishment of military tribunals, by order of the president alone, in northern states where the ordinary courts remained open during the Civil War. The majority opinion was delivered by Justice David Davis, in which he made a number of statements prescient for the current Constitutional crisis in which the U.S. finds itself. Davis stated, prophetically, that America:

“has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution....wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln.”

Over time the mainstream legal view has been that Milligan was the judiciary upholding its end of the bargain within separation of powers, checking excesses of the executive. Oliver Wendell Holmes called Milligan a “landmark of constitutional liberty”. John Innis Clark Hare, professor of constitutional law at the University of Pennsylvania, also is quoted as saying that with Milligan:

“the wavering balance fortunately inclined to the side of freedom, although with a tendency to oscillate which leaves the ultimate result in doubt.”

That wavering balance has been tipped toward an unaccountable chief executive with two recent decisions of the Supreme Court. To understand why, it is necessary to first revisit the Morrison case in which Justice Scalia set out the interpretation of the Constitution as all executive power vesting in the president. Morrison concerned legislation which permitted the appointment by the courts of appeal of independent legal counsel to investigate senior executive officials, on the basis that an Attorney General handpicked by the president may be disinclined to do so. Such independent counsel, according to the wording of the relevant statute, could not be removed except for in instances in which the A.G. could show “good cause”.

Justice Scalia saw this limitation on the ability of the president to direct dismissal of an independent counsel save for demonstrating “good cause” as fettering with the absolute exercise of executive power by the president, as he interpreted the wording of Article II of the Constitution. In his dissent, Scalia stated:

‘Congress, of course, operated under no such illusion when it enacted this statute, describing the “good cause” limitation as "protecting the independent counsel's ability to act independently of the President's direct control" since it permits removal only for “misconduct.”’

As Scalia saw it:

‘limiting removal power to “good cause” is an impediment to, not an effective grant of, Presidential control.’

Scalia went on to state in the judgment that even when crimes are alleged against the President or close associates, that the President should have “complete control over investigation and prosecution of violations of the law.”

Prior to the current majority, manifestations of the unitary executive theory had flashed before the Court, notably during the George W. Bush reign of neocon madmen, in particular Dick Cheney, and their distorted views of the extent of executive power. Vladeck elaborates on how the appointment  of the two most recent Supreme Court Justices - Brett Kavanaugh and Amy Coney Barrett - has firmly tipped the balance of the Supreme Court toward a full embrace of the unitary executive theory.

Vladeck hones in on two recent decisions. The first from June 2020 was the case of Seila Law v. Consumer Financial Protection Bureau, in which Kavanaugh provided the deciding vote, which held that junior executive officers - such as the independent legal counsel at issue in Morrison - could be removed without cause. However, this only applied if the officer in question was the sole head of an independent agency, rather than one member of a multiperson board running an agency.  This was followed by the case of United States vs. Arthrex, in which Barrett provided the deciding vote, which extended the definition of executive officers coming under direct control of the President, and thus open to summary removal without cause by the chief executive. To quote Vladeck:

“In one fell swoop, the Court significantly winnowed the ranks of bureaucrats protected from presidential removal by Morrison and substantially increased the president’s direct control over administrative judges within the executive branch—a class of officials whose independence is central to their job.”

With this recent jurisprudence, the Supreme Court has been intervening on side of executive, eroding the checks on executive power which Milligan sought to give expression to. Per Vladeck:

“The clear takeaway from a handful of recent decisions is that the Supreme Court is now as committed to the idea of the unitary executive as it has been at any point in its history.”

And this commitment occurs at a precarious time for U.S. politics and the slow arc of progress to realising - for all citizens - the principles enshrined in the Constitution. The reality, as legal scholar Linda Greenhouse and others have argued, is that for the majority of American history the Supreme Court has been an impediment, rather than facilitator, of progress. The exception is a brief 20yr period between the 1950's and 1970's when the Warren Court set out on what Horwitz termed “an expansive conception of the democratic way of life with as the foundational ideal of constitutional interpretation”. Greenhouse highlights numerous decisions during this period - expansion of voting rights, women's rights, the rights of criminal defendants, desegregation of schools - that gave effect to that “foundational ideal of constitutional interpretation”.

The uncomfortable truth of the role of the U.S. Supreme Court in the life of the citizenry is that the flourishing period of the Warren Court was the exception, not the rule. Harvard's Lawrence Tribe, who clerked for the Warren Court, highlights numerous examples of the Supreme Court as a barrier to the realisation of these constitutional ideals:

• Dred Scott v. Sandford (1857): denied citizenship and full personhood to Black slaves and their descendants;

• Plessy v. Ferguson (1896): upheld “separate but equal” public facilities for Blacks and Whites;

• Korematsu v. United States (1944): upheld the President's power to round up and detain Japanese-American citizens without proof of subversion or disloyalty;

• Citizens United v. Federal Election Commission (2010): stuck down virtually all legislation seeking to limit corporate spending and contributions to political campaigns; 

• Shelby County v. Holder (2013): struck down the provision of the Voting Rights Act of 1965 that required any changes to state and local voting  with discriminatory potential to be submitted for approval to the Justice Department;

• Fulton v. City of Philadelphia (2021): held that a Catholic social service agency’s policy of discrimination against considering same-sex married couples as foster parents was not a reason for the City to terminate its contract, despite the agency's policy violating the City's anti-discrimination laws;

• Bush v. Gore (2001): held in favour of halting the Florida recount in the 2000 presidential election, handing the presidency to George W. Bush (Gore led by half-a-million votes nationally, and of the 6-million votes cast in Florida, Bush only led by only 537 votes when the recount was halted).

One could add the the more recent Raysor v. Government of Florida, in which the Court decided to uphold voter disenfranchisement, and Brnovich v. Democratic National Committee, where every Republican Justice decided in favour of dismantling what was left of the integrity in the Voting Rights Act. And we know in advance that the seminal Roe v. Wade is all but shredded, and women's rights set back to the early 20th Century. Blessed be the fruit.

It should be the function of the highest court in liberal democracy to have a role in helping shape the progress of the nation, protecting citizens, upholding rights, and outlawing discrimination. Not only is the level of judicial activism from the current Supreme Court relatively unprecedented in its dominance, centring the unitary executive theory as the dominant interpretation of chief executive power gives rise to the potential for a demagogue in the White House to wreak havoc on a the executive branch.

These recent decisions directly reflect Republican political policy: disenfranchise Black voters, appease the Christian fundamentalist far-Right lobby on women's rights and separation of church and state, facilitate a hierarchical unitary executive with vertical power projection on government, and consolidate minority rule structures for the legislature and executive. And this is where the detriment of the minority rule structures, derived from the Constitution, comes to the fore. The decisions of the Supreme Court reflect the will of the minority. Gallup Polling indicates that only 19% of American's want abortion to be illegal. 80% support early voting, and 63% automatic voter registration. 70% support same-sex marriage, and 63% support the entitlement of same-sex couples to adopt.

And as Greenhouse observes, many of these decisions have been decided by one vote. In December last year, the report of the Presidential Commission on the Supreme Court of the United States was published. In the section on the introduction of term limits, it highlighted that:

“The nine individuals who sit on the Supreme Court wield extraordinary power over critical social and political questions, often for several decades. Though judicial independence requires them to be insulated from the same forms of accountability imposed on the political branches, life tenure arguably arrogates too much power to single individuals.”

The implementation of that power is now firmly in favour of minority interests. Akhil Reed Amar, author of the biographically-written ‘America's Constitution’, illustrates that many of the major progresses of the past 150yrs have reflected Congressional action, i.e., legislative reform mandated by a mobilised citizenry. A select number of landmark cases excepted, the Supreme Court has not been an equal partner among the branches of government in upholding civil and political rights; Congress has, historically, primarily been the real engine of change. Article III of the Constitution left the size and composition of the Court to Congress, and from enactment the Supreme Court under the Constitution has been open to political restructuring along whatever lines the control of Congress and the executive see fit. It is within this context that the GOP has been manoeuvring to achieve a vice-grip on the Supreme Court, to reverse the effects of statutory progress by positioning the Supreme Court as the sole engine of change.

Historically, the balance to the Supreme Court acting as an impediment to the rights of the dispossessed was Congress: but the Senate in particular is now a dysfunctional institution loyal to Party before Nation, to ideology before duty. The dream of Reaganite legal scholars, to have a free run at dismantling what the GOP perceived as increasing Federalism in the New Deal-era, is now. Holding the Supreme Court has thus become a political imperative to further political ideological aims. This is a corrosive use of the judicial branch of government. And when it coincides with the will to situate executive power solely in the office of the president, this becomes a dangerous combination for upholding democratic norms in the near future.

The U.S. legislature also exhibits disproportionate capacity for minority interests to frustrate majority will. Article I of the Constitution contained a huge emphasis on apportionment of representation. The implications of the “three-fifths” clause - which stipulated that each slave in a state counted as three-fifths of a full vote to bestow Southern states with more voting power relative to more populated Northern states - still remain today, providing disproportionate representation to a minority of the population, and the clout to protect that interest. Article II was built on Article I: the Electoral College would be apportioned based on the number of seats a given state held between the House and Senate. Presidents are elected by the College, and Presidents appoint justices to the Supreme Court. Thus, the effect of this clause was to apportion power in each branch of government based on disproportionate minority interests, as a president who has lost popular vote, itself a reflection of the Electoral College system, can install justices to serve until death or the good grace to retire. Retirements themselves tend to be strategically timed in line with the political allegiances of the particular justice in question.

The 21 least-populated states are all represented by Republican senators, which collectively make up 11% of the total population, and within which the Republicans have openly groomed the Christian fundamentalist and anti-government voter bases. The skewered demographics of the Electoral College today favour the Republicans much more than Democrats; Trump lost the popular vote but was elected via the Electoral College, and appointed three justices to the Supreme Court to secure a 6-3 Republican majority. Of these appointments, Linda Greenhouse identifies Barrett as a singular threat to democratic values. A critical point related to tenure is that, from the Republican perspective, securing the Supreme Court means that even intermittent periods of Democrat control of the House, Senate, or the executive, won't make much difference because of life tenure.

The President's Commission report on the state of the Supreme Court stated that there were:

“two important features of our constitutional system of checks and balances: judicial independence on the one hand and long-term responsiveness of the judiciary to our democratic system of representation on the other.”

Both of these principles have been betrayed; the perceived independence of the Court has been dealt hard blows with the naked ideologies of the serving majority, while minority rule in Congress means that majority interests are not represented democratically in the legislature. With Republican control of the Supreme Court, very specific policy aims in reversing, limiting, or destroying, the rights and lives of ordinary American citizens, are now in full swing. And with the recent decisions of the Supreme Court giving effect to the unitary executive theory, there is now the potential for an excess of executive power concentrated in the Oval Office, justifiable to no-one but itself, answerable to not even the highest court in the land. This is a level of dysfunction not seen in any other democracy in the world.

In Milligan, Justice David Davis wrote:

“When peace prevails, and the authority of the government is undisputed, there is no difficulty of preserving the safeguards of liberty… but if society is disturbed by civil commotion—if the passions of men are aroused and the restraints of law weakened, if not disregarded—these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws.”

At a time of civil commotion, roused passions in society and weakened restraints of the law, those entrusted with guardianship of the Constitution are not only failing to safeguard liberty, but actively working to dismantle and desecrate individual rights and democratic norms. And given the litter of malevolent actors that make up the modern Republican Party, that a despot will find themselves in the office of president with the full legal support of the unitary executive theory seems inevitable. Perhaps the history books will remember America as the greatest idea of democracy that never quite happened.