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Legal Commentary

: Balkinization

Obama, the Court, and "Redistribution"

By Jack M. Balkin

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Rather than focusing on actual policy differences in the waning days of this election year, the McCain campaign and its supporters are up in arms over a 2001 discussion of constitutional history on Chicago Public Radio. McCain campaign economic advisor Douglas Holtz-Eakin claimed that on the program "Barack Obama expressed his regret that the Supreme Court hadn't been more 'radical' and described as a 'tragedy' the Court's refusal to take up 'the issues of redistribution of wealth.' No wonder he wants to appoint judges that legislate from the bench."

Short excerpts of the hour-long conversation about the courts and civil rights have ricocheted around the blogosphere accompanied by claims that they are evidence that Obama supports a radical Supreme Court aimed at wealth redistribution.

In response to a query from the CNN "Truth Squad," I took a look at the transcript. It is an interesting but not particularly earth shattering discussion of Supreme Court history with Obama, University of Chicago Professor Dennis Hutchinson, and DePaul University Professor Susan Bandes. Rather than suggesting that Obama wants the courts to engage in wealth redistribution, he instead suggests that courts are not a good forum for disputes involving inequalities in public financing. Instead courts "are just poorly equipped to do it."

Here are the parts of the transcript Fox News emphasizes on its website (emphasis provided by Fox, typos in original transcript):

OBAMA
39:45 and it essentially has never happened i mean if you look at the victories and failures of the civil rights movemtn 39:48 and its litigation strategy and the court i think wehere it succeeded was to vest formal rigths in previously dispossessed peoples so that i would not have the right to vote would now be able to sit at lunch counter and as lpong as i coudl pay for it would be ok 40:10 but the supreme court never ventured into the issues of redistribution of wealth and sort of basic issues of political and economic justice in this society and to that extent as radical as people try to characterize the warren court it wasnt that radical 40;30 it didnt break free from the essential constraints that were placed by the founding fathers in the constituion at least as it has been interpreted and the warren court interpreted
it generally in the same way that the constitution is a document of negative liberties 40:43 says what the states cant do to you says what the federal govt cant do to you but it doesnt say what the federal govt or state govt mst do on your behalf and that hasnt shifted and i think one of the tragedies of the civil rights movement was that 41:01 the civil rights movement becaem so court focused i think there was a tendency to lose track of the political and organizing activities 41:12 on the ground that are able to bring about the coalitions of power through which you bring about redistributive change 41:20 and in some ways we still suffer from that
----------------
caller (karen): 46:07 the gentlemen made the point that the warren court wasn't terribly radical with economic changes my question is is it to late for that kind of reparative work and is that the appropriate place for reparative economic work to take place
Q you mean the court
caller: the court or would it be legislation at this point
OBAMA
46:27 you know maybe i am showing my bias here as a legislator as well as a law professor but you know i am not optimistic about bringing about major redistributive change through the courts 46:43 you know the institution just isn't structured that way just look at very rare examples where during he desegregation era the court was willing to for example 46:55 order you know changes that cost money 46:59 to local school district and the court was very uncomfortable with it it was hard to manage 47:04 it was hard to figure out you start getting into all sorts of separation of powers issues 47:09 you know in terms of the court monitoring or engaging in a process that is essentially is administrative and take a lot of time the court is not very good at it and politically it is hard to legitimize opinions from the court in that regard 47:27 so i think that although you can craft theoretical justifications for it legally you know i think any three of us sitting here could come up with a rationale for bringing about economic change through the courts 47:45 i think that as a practical matte that our institutions are just poorly equipped to do it

The full program is here (click on Jan. 18 program).

What does "redistributive" mean in the context of this interview? The interview focused in part on cases that have a "redistributive" impact, in that the Court was asked to order that government resources be spent to fix a problem. That is "redistributive" if we think of federal tax dollars being shifted from one program to another. The case especially discussed is San Antonio Independent School District v. Rodriguez. The problem in the case was that the school district was spending much more money per capita on some children than on others. The plaintiffs said that that was unconstitutional, arguing that it discriminated against the poor and violated a fundamental right to education. The Supreme Court ruled against them.

Obama suggests that to solve problems like this, the legislature is a better place than the courts. His position on the courts is, in this respect, moderate and supportive of judicial restraint. Warren Court-era liberals instead wanted the Court to solve the school funding problem.

As Obama notes, the problem of inequality in school funding was so great that it was taken up by a number of state supreme courts, including the Texas Supreme Court, leading to rulings that great inequalities in funding were unlawful under state law.

Notwithstanding these developments, it?s Obama?s position, in this transcript, that on issues that affect public financing, courts "are just poorly equipped to do it."

Obama also mentions "redistribution" in discussing the civil rights movement, suggesting that "there was a tendency to lose track of the political and organizing activities 41:12 on the ground that are able to bring about the coalitions of power through which you bring about redistributive change 41:20 and in some ways we still suffer from that."

Obama doesn?t fill in the sort of "redistributive change" he?s thinking of here, but this sentence should of course be read in the context of the larger discussion, which relates to whether the courts should be used to require the government to spend money to redress specific problems of poverty, such as unequal funding for public education. I think this helps us see that his focus is on government funds being used in a way that is fair (e.g. the Rodriguez case), and that resolve social problems like poor schools. Government funds are always directed at something. To change policies in a way that would direct more resources to the poor would be "redistributive" in that it would shift government funding in that direction.

Many believe that problems in American inner cities have never been addressed. Obama?s statement that "we still suffer from that" is consistent with the idea that difficulties faced by the poor (lack of access to jobs, quality education, health services, etc.) were not addressed during the civil rights era. This is not a very controversial position, although there are great differences of opinion about the causes of urban poverty and the policies needed to redress it.

Nothing in the interview suggests that he?s thinking of "redistribution" of income directly from one person to another.

But there is a silver lining to the brouhaha. What else would cause so many to rush to listen to a rather academic discussion of constitutional history?

Full post as published by Balkinization on November 01, 2008 (boomark / email).