Legal shorts for December 22, 2015: Citizens have zero influence on public policy, and a dark chapter of court history resurfaces

Politicians are tone-deaf to 'average Americans'

"The preferences of the average American appear to have only a minuscule, near-zero, statistically nonsignificant impact upon public policy."

“[P]olicymaking is dominated by powerful business organizations and a small number of affluent Americans….”

Martin Gilens and Benjamin Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens

When it comes to who influences American politics, populism has proven to be the exception rather than the rule. As Slate’s Boer Deng points out in an April 24, 2014, essay, the Founding Fathers were most interested in protecting the rights of property owners, who were a minority of citizens in the 18th and 19th centuries.

Some 80 years after the height of populism in America – President Franklin Delano Roosevelt’s New Deal – we’re about as far away from populism as we’ve ever been. Democrats ignore public opinion just as much as Republicans these days. One of the first policy initiatives to reverse the trend of the rich paying less and the poor paying more is President Barack Obama’s Affordable Care Act, which Deng states serves as a surcharge on the rich.

As nice as it would be to believe populism is making a comeback, it will take more than a good showing by populist candidate Bernie Sanders in his run for the Democratic Presidential nomination in 2016 to put us average, everyday folk back in the politicians’ good graces. It starts with a top-to-bottom reformation of the corrupt electoral process, which in its current state makes permanent fundraising the top priority for anyone in or seeking office. So what do you say we all take Harvard Professor Lawrence Lessig’s advice and Fix Democracy First!

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The awful, terrible, horrible Korematsu decision rears its ugly head once again

In the June 25, 2015, Weekly I cited Bush v. Gore as the worst decision in the history of the U.S. Supreme Court, in large part because the case was decided along completely political lines and had no substantial legal underpinnings. In a December 18, 2015, post, Constitution Daily’s Scott Bomboy reports on the three worst Supreme Court decisions, according to a consensus of Constitution scholars of every political stripe: Dred Scott (African-Americans aren’t full-fledged citizens); Plessey (separate but equal is constitutional); and Korematsu (it’s constitutional to round up and imprison citizens during times of war based solely on their nationality)

After Republican Presidential candidate Donald Trump cited FDR’s internment of Japanese Americans during World War II as rationale for barring Muslims from entering the U.S., Korematsu was held up as the legal justification for such a ban. Bomboy points out the most obvious difference: Trump wants to ban people based on their religion, while Korematsu allowed them to be imprisoned based on their ethnicity.
While the broad consensus is that the Korematsu decision was a tragic mistake that shouldn’t be repeated, the case remains “good law,” according to Temple Law Professor Peter Spiro, as quoted in a December 8, 2015, New York Times column. Bomboy quotes Justice Antonin Scalia as stating that “another Korematsu situation” could happen.

In a December 18, 2015, op-ed piece in the Los Angeles Times, John Inazu and Karen Tani, whose grandparents were U.S. citizens interred during World War II, write that the legacy of Korematsu for every American is that our “freedom could be taken, [our] rights ignored, and [our] lives disrupted, solely because of [our] ancestry.” Two wrongs, three wrongs, four wrongs – add up any number of wrongs you want, you still won’t make a single right.