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Fair Weather Friend of the Court

Senator Specter passes the buck to the courts on one of the major issues of the day.

12:00 AM, Jul 31, 2006 • By ADAM J. WHITE and DAVEED GARTENSTEIN-ROSS
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NOW THAT THE SUPREME COURT has ruled against the White House on the military detention of U.S. citizens and the presidential institution of military commissions, the next big legal issue seems to be the National Security Agency's warrantless surveillance of international communications. Sen. Arlen Specter, chairman of the Senate Judiciary Committee, recently had the chance to take decisive action--either for or against the president--when he introduced legislation addressing the once-secret NSA program. But he declined the opportunity in favor of a third course: punting the issue to the courts.

This is hardly uncharted territory for Specter. Throughout his career, he has pledged his devotion to the courts and to court precedent whenever it was politically expedient to do so. But when the politics point the other way, no senator is more vocal in criticizing the judiciary.

NSA SURVEILLANCE OF AMERICANS' INTERNATIONAL communications would normally be subject to the Foreign Intelligence Surveillance Act of 1978, which requires that such surveillance generally be conducted pursuant to a court order. Battling criticism of President Bush's decision to authorize a surveillance program that circumvents FISA, the White House has argued that the president's actions were justified by the post-9/11 Authorization for the Use of Military Force (AUMF) as well as the president's inherent constitutional authority to engage in such surveillance regardless of statutory restrictions.

Specter has expressed his disagreement with the AUMF argument but has remained publicly agnostic on the more controversial "inherent authority" issue. His draft legislation doesn't weigh in on the issue, but rather leaves it to the federal courts. After Specter's proposed changes, Section 801 of FISA would read: "Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers."

Some constitutional scholars, such as Orin Kerr and Marty Lederman, understand this language to endorse the president's circumvention of otherwise applicable FISA requirements. Such a reading seems implausible, though, in light of the Supreme Court's pre-FISA surveillance case United States v. U.S. District Court ("Keith"). There, the Supreme Court considered language indistinguishable from that in Specter's draft. A federal statute limiting surveillance provided that "[n]othing contained in this chapter . . . shall limit the constitutional power of the President to . . . obtain foreign intelligence information deemed essential to the security of the United States." The Court refused to read this language as endorsing surveillance otherwise barred by the statute:

At most, this is an implicit recognition that the President does have certain powers in the specified areas. Few would doubt this, as the section refers--among other things--to protection "against actual or potential attack or other hostile acts of a foreign power." But so far as the use of the President's electronic surveillance power is concerned, the language is essentially neutral. . . . It merely provides that the Act shall not be interpreted to limit or disturb such power as the President may have under the Constitution. In short, Congress simply left presidential powers where it found them.

Specter's draft, like the Keith statute, does not weigh in on the president's claim of inherent authority: It leaves the claim entirely to the courts. In a July 24 op-ed in the Washington Post, Specter himself made clear that "[t]he bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist."

On the other hand, a strong affirmation or rejection of the president's claim would dramatically affect judicial review. The Supreme Court has repeatedly shown (most recently in its Hamdan decision) that, as per Justice Robert Jackson's famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the court will provide greater deference to the executive's power when Congress agrees with the president's interpretation. Conversely, presidential power is at its lowest ebb when the president acts contrary to Congress' will. But Specter would have no part in this.

THE PRESIDENT'S "INHERENT AUTHORITY" is not the only issue that Specter wants the courts to resolve for him. Abortion was, until this year, Specter's favorite judicial issue. Throughout the confirmation hearings of Justices Roberts and Alito, Specter insisted that Roe v. Wade had become a "super precedent" (even going so far as to comically dub it a "super-duper precedent") that should not be subject to judicial reversal.

Reversal of Roe v. Wade would return abortion to the state legislatures--and would likely also make it an issue of political debate at the federal level. Throughout his tenure in the Senate, Specter has fought to keep that political mess in the courts. Although he now cloaks his argument in the rhetoric of respect for prior judicial decisions, Specter's stance on the abortion issue was evident long before Roe became anything resembling a "super-duper precedent." The Washington Post reported in March 1992, before Planned Parenthood v. Casey upheld Roe, that Specter peppered his primary campaign's stump speech with a warning that abortion is the "most divisive issue since slavery" and that, as the Post summarized his remarks, it "has no place in political campaigns."

If Specter had to take a strong legislative position on abortion, his political fortunes would not be assured in Pennsylvania. This is the state where he struggled to beat back a primary challenge from Pat Toomey in 2004, and where two pro-life candidates, Republican Sen. Rick Santorum and pro-life Democrat Bob Casey Jr., are fighting for the other Senate seat. So long as Specter can commit the issue to the courts, citing only the neutral principle of stare decisis, his political life is made significantly easier.

BUT SPECTER'S LOVE AFFAIR WITH THE COURTS is not without its stormier moments. Despite his stated position in the surveillance and abortion debates, Specter is a fierce critic of the courts when they contradict him on politically safe issues. Ironically enough, this also manifested itself in the same Roberts confirmation hearing where Specter lauded Roe v. Wade's precedential value.

In that hearing, Specter sharply rebuked the Court's decisions in United States v. Lopez and United States v. Morrison, which limited Congress' ability to rely on the Constitution's Commerce Clause to pass regulations affecting purely intrastate matters. These decisions infuriate Specter, who insisted in the hearing that the Court had belittled Congress' "method of reasoning," and that the decisions represented "the denigration by the court of congressional authority." Right or wrong, Specter seems to reject utterly the Court's contention that Congress cannot be the judge of its own power. If the Court overturned Lopez and Morrison tomorrow, Specter would shed not a tear, even through Lopez, now 11 years old, is older than Roe was when Specter began his Senate tenure in 1980.

Specter's eagerness to abandon his commitment to judicial supremacy and stare decisis isn't limited to the Commerce Clause. In 1993 he co-sponsored the Religious Freedom Restoration Act (RFRA), a bill explicitly passed to reverse the Supreme Court's interpretation of the First Amendment's free exercise clause in Employment Division v. Smith. (Not surprisingly, the high court struck down RFRA, holding that Congress couldn't overturn the Supreme Court's interpretations of the Constitution.)

WHAT DISTINGUISHES THESE CASES involving such seemingly disparate issues as the Commerce Clause, presidential authority, and the First Amendment? Why does Specter defer to the courts on some issues but not others?

It's possible that Specter's selective outrage is driven by his policy preferences. He may laud the judiciary when he likes its decisions and castigate it when he disagrees. He wouldn't be alone in this: Conservatives and liberals alike are guilty of applauding judicial supremacy when it serves their policy interests and decrying it otherwise. However, such selective outrage does not entail a coherent philosophy. And Specter perhaps best exemplifies the intellectual confusion that can result.

But a more likely explanation is that Specter defers to the Court on issues that are politically explosive, while providing no such deference on unquestionable political winners. The Gun Free School Zones Act (struck down in Lopez) and Violence Against Women Act (struck down in Morrison) aren't political risks for Specter at the polls. Indeed, his continued ability to trumpet his commitment to them is a boon. Even RFRA was a political winner: It passed the Senate by an overwhelming 97-3 margin.

However, eagerness to embrace contradictory positions on these issues for the purpose of political gain is a strategy fraught with danger. It contributes to courts becoming increasingly political bodies. When politicians choose to punt issues to the court out of fear of political controversy, it shouldn't surprise them that in turn the courts become more political, like a kind of "superlegislature."

Senator Specter is not afraid to read the Constitution for himself where political expedience permits. But on more explosive issues like NSA surveillance and abortion, he suddenly becomes a champion of the judiciary. This inconsistency should give rise to hard questions about Specter's motivations, and the consequences of his approach.

Daveed Gartenstein-Ross is an attorney and senior consultant for the Gerard Group International LLC. His first book, My Year Inside Radical Islam, will be published in Winter 2007 by Tarcher/Penguin. Adam J. White is an attorney whose review of Justice Jackson's draft opinions in the Korean War-era Steel Seizure Cases will appear in the Albany Law Review later this year. Mr. White does not write on behalf of his employer.