Supreme Court has too much power

Gordon L. Weil

The U.S. Supreme Court will come back in a couple of weeks, and it will again be making politically charged decisions on whether laws passed by Congress are allowed by the Constitution. 

Such decisions are among the most controversial it makes.   They give the Court a power greater than Congress, which makes the laws.  This is the power of “judicial review.”  When the Court’s decisions appear excessively partisan, it looks more legislative than judicial.  Anger with it may run high, leading to proposals to “pack” it by adding more justices.  

As the U.S. Supreme Court gets under way, the world is already being treated to an open national battle over judicial review. Crowds of demonstrators have taken to the streets of Israel.  This week, its Supreme Court began hearings on a legislative attempt to reduce its review powers.

The Israeli court has assumed the responsibility for making final judgments about whether laws are constitutional, just as has the U.S. Supreme Court.  In 1803, the justices here decided that they alone could say “just what the law is.”  That way, their dying political party could shape the law even after congressional control had gone to the opposition.

In Israel, the government, under pressure from some parties that provide it enough support to stay in power, wants to give the Israeli legislature – the Knesset – the last word on what the laws are.  Israel has no constitution, and its Supreme Court has protected its “basic laws,” deciding if new laws meet a test of “reasonableness.”

The government’s logic is that the Knesset, an elected body, should determine the law and not a court composed of appointed judges, some of whom have been on the bench far longer than the current government.  After all, the legislature reflects the people’s will, it claims, not the judges.

Even if that logic may seem sensible, it infuriates a lot of Israelis.  Many Americans might agree.  They worry that democracy itself is likely to be threatened when the court’s moderating hand is taken off constitutional decisions.  Of course, they may simply prefer a court they see as a partisan ally.

Foreign governments usually try to stay out of the internal affairs of other nations, but the U.S. has expressed concern about changes in Israel that could lead to complete control of the law by a bare majority of the 120-member Knesset.  It would also pick the judges.

Yet Israel’s proposed form of judicial review is not unique.  It is called “parliamentary sovereignty.”  It exists in several democratic countries, including the United Kingdom.  With no written constitution as a reference, the U.K. Supreme Court usually rules that laws passed by Parliament must be enforced and may overrule earlier laws or court decisions.

The U.S. system is based on the Court alone deciding what the written Constitution means and if Congress has acted in line with that meaning.  The last word comes from nine appointed justices and not from the legislators who make the laws. 

The U.S. Supreme Court can be as politically slanted as the Israeli courts, because its majority may be named and approved by members of a single party even if congressional control has later shifted to the other party.  That’s how today’s Republican-appointed Court majority overturns laws earlier passed by Democrats, even if once approved by the Court.

When the Court reverses its views thanks to the appointment of new justices, it looks like a partisan legislative body rather than a neutral and nonpartisan panel operating above the political battles.  As it increasingly appears to be an uncontrolled political player, it loses popular respect.

A possible solution could be to couple judicial review with oversight by the lawmakers in Congress.  Without eliminating judicial review or undermining confidence in the Court, Congress has the ability to modify review, strengthening the checks and balances that are supposed to exist among branches of government.

The Supreme Court’s constitutional decisions could have to face congressional review.  Congress would vote on whether to overrule the Court.  If it did, the Court’s decision would be suspended and a second vote would be required following the next congressional election. The possibility of a presidential veto might make necessary a veto-proof, two-thirds majority vote. 

This procedure would introduce legislative involvement, but it would go less far than the British system.  It might bring the voters themselves into the process of deciding if a law is constitutional

Even if Court decisions were not reversed, the process would focus attention on it. The Court would become more accountable, and judicial partisanship might be reduced.

The time has come to begin talking about how unchecked judicial review undermines checks and balances.  The Court’s role should be part of the political debate.  Otherwise, unlimited political power will keep moving toward a Court majority of five unelected justices.

  

Maui’s utility crisis – it could spread

 

Gordon L. Weil

Maui matters. It matters to Maine and probably many other places.

That’s because Hawaiian Electric, the utility that serves the island, has become the focus of concerns that it was a major cause of the fires that disastrously swept a part of that Pacific island. The utility’s downed wires probably caused extensive fires that were not doused quickly enough.

Electricity customers almost everywhere get periodic warnings not to touch wires that are off the poles, usually as the result of a storm. Wires carry electricity from power generators to customers for use in heating, machinery, lighting and many other devices. If they touch the ground, they may remain live. If a person touches a live wire, it can cause injury or death.

Anything an energized line touches receives electricity. In Maui, lines were downed and set off uncontrolled fires on the ground. The fires took what may prove to be hundreds of lives. Critics claim it could have cut off power sooner.

One reason why the threat of downed lines exists is because most electric wires are thin and bare and not protected by an insulating covering. That means that if they come under the weight of a tree limb or fallen tree, they can break more easily than would a more substantial, insulated wire.

Where lines are relatively often broken or grounded, power to customers is interrupted. These “outages” lead to a loss of reliability.

Like Maui, Maine may be unusually vulnerable. More of its surface is forested than in any other state. Utilities claim that trees are the reason why Maine has among the highest rate of outages of all states. Central Maine Power and Versant are among the least reliable electric utilities in the country.

But there’s a lot more to this story. There have always been trees in Maine, and the utilities should have considerable experience with them. Central Maine Power has existed since 1910, 113 years ago. Couldn’t it have learned to deal with trees at some time?

The Maine Public Utilities Commission and similar regulators in other states have belatedly come to require “vegetation management,” reducing outages. The rates utilities are authorized to collect include the costs of vegetation management. If a utility scrimps on tree trimming, it can keep for itself as profit some of that allowed income.

That may have happened on Maui and in other utilities across the country. It can be detected in states where there are both high outage rates and lots of trees.

Unless regulators keep a sharp eye on utility tree trimming, outages can be excessive, making the system unreliable. A few years ago in Maine, the PUC finally required CMP to adopt a program of vegetation management to keep trees away from the lines and increase reliability. In other states, other utilities were doing the same.

“We decided that we needed to get very serious about doing tree trim along every mile, along every span of our distribution system, so we started that in 2008 and gradually over the years – since the program started –we’ve been seeing more and more of a reduction in outages caused by trees,” said CMP.

CMP took credit for what it was finally required to do, only 98 years after the utility was founded. And still its outage rates are among the highest.

There’s another solution that yields maintenance savings: protect the wires. Wires can be insulated and supported by metal cable, avoiding expensive underground lines. But that investment may be less profitable for the utility than building major transmission lines.

Maine, only the 39th state in size, is supposedly too large to use protected wires. But about half of the state’s territory is unorganized with virtually no utility electric service at all.

Non-profit utilities have no incentive to skip tree trimming to boost their revenues. Admittedly, Nebraska has few trees compared with Maine, but it’s also the only state with no for-profit utilities. It is ranked as the most reliable state for electric service just about every year.

The issue may be less about the trees than about the utility. For example, Louisiana joins Maine at the bottom on reliability and it has above average tree coverage. It is dominated by a leading for-profit utility. In contrast, Maine’s non-profit utilities are more reliable than the state’s two for-profits.

A disaster such as occurred in Maui can happen elsewhere. Look at California, where PG&E’s lines have caused major forest fires. The risk exists in Maine and almost any other state.

The answer is either regulators getting much tougher on for-profit utilities and requiring them to install protected wire or giving the responsibility to non-profit utility management, accountable only to its customers for their safety and reliable power.

Donald Trump: the ultimate wedge issue

Gordon L. Weil

Us versus them.

That may be the core of American politics these days.  It often becomes a “wedge” issue.  That’s a single, polarizing cause, usually focusing on social concerns, which gets translated into a political war.

Candidates make a wedge issue the focus of their campaigns.  If they can gain support on the strength of their position on that single issue, they expect their voters to give them free scope to pursue most other policies when in office.

Wedge issues have been around for more than a half-century.  The idea is thought to have been first applied effectively by Kevin Phillips, an advisor to Richard Nixon in his 1968 presidential campaign.  He wanted Republicans to encourage Southern Blacks to become Democrats.  Then, he said, “the Negrophobe whites will quit the Democrats and become Republicans.”

Under Democrats, led by President Lyndon Johnson, civil rights and voting rights laws had been passed in the 1960s.  That would drive many Southern Democrats to the GOP, which had opposed those new laws. 

Bitterly, Johnson said that if you could convince a white man that he was better than any Black man, “he won’t notice you’re picking his pocket. Hell, give him somebody to look down on and he’ll empty his pockets for you.”  Johnson had explained the essence of the first effective wedge issue.

Though the Democrats sometimes try to make wealthy people their polarizing target, the Republicans are the party of the wedge issue.  This was not a surprising move for the GOP,   concerned about possibly losing support.  Such issues might peel away Democrats, as in the South, and could inspire potential supporters who had been on the political sidelines.

While race would remain a divisive issue, two major, new wedge issues arose – abortion and guns. 

As laws easing access to abortion were adopted, supporters of traditional limitations organized.  The battle lines became sharper after the U.S. Supreme Court’s 1973 Roe v. Wade decision recognized a federal abortion right.

At the same time, lines were hardening on gun control.  In 1968, the Gun Control Act was passed with the support of the National Rifle Association, an organization then focused on recreational firearms use.  By 1977, the NRA was taken over by activists who opposed any limits on gun ownership.

On both issues, opposition was focused either on the Democrats or on a liberal Supreme Court.  It was natural for the Republicans to align their party with the opponents of increased abortion access or gun control, especially as they became more politically active and focused solely on a single issue.

Their support gave successful Republicans the backing they needed for other policies. President Nixon could warm up to Communist China with little controversy, while relying on the support of conservative voters who cared almost exclusively about race, guns or abortions.

Wedge issue constituencies could be added to one another. Catering to gun control opponents did not conflict with also seeking support from abortion foes.  It became increasingly clear that the GOP should try to collect special interest constituencies into a coalition to offset any voter losses to the appeal of Democratic economic and social polities.

It has made progress using wedge issues to block the treatment of transgendered people and ban books in school libraries. But, in attempting to find new wedge issues, the GOP does not always succeed.  Its efforts to outlaw burning the American flag or same-sex marriage failed.  Its war on “woke,” a sentiment favoring repair of past legal injustice, is still fought but may be fading. 

Quite possibly, the greatest wedge issue is not a policy but a person.  The Republican Party’s support for Donald Trump reflects both the emotional appeal of an issue like gun control and the political realism of cultivating support to form a coalition that can win elections.

Trump’s appeal seems to withstand the effects from his bravado about groping women to his facing four criminal indictments and a host of other legal complaints.  His support for wedge issues has made him their embodiment.  Trump retains deep-seated political immunity resulting from habitual and pragmatic loyalty among a majority of Republicans.

The exploitation of Trump’s wedge-issue status could make sense.  Couple it with the ability of the GOP’s minority of popular voters to control a majority of electoral votes and its efforts to suppress access to the polls for likely Democratic voters, and Republican hopes to control the federal government may be realistic.

Ardent Democrats seem to believe that the American people will come to their senses and halt this divisive push.  They may be encouraged by support for abortion rights shown in conservative states after the Supreme Court nullified Roe v. Wade. 

The Democrats may need to strengthen their own links to wedge issue groups, especially among women, and get out their vote.