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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.

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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.