See if this story sounds familiar: During crippling economic times, new social legislation is passed by Congress and signed into law by the president. In an effort to maintain a level of independence on the Supreme Court, Justice Roberts changes his vote so the new law stands as constitutional.
The year was 1937, and the legislation was the enactment of minimum wage laws. The Supreme Court justice who switched his vote was Associate Justice Owen Roberts. His decision paved the way for other New Deal reforms that previously had been blocked by the court. Anyone who has earned a minimum wage in the last 75 years can thank Justice Roberts.
He also voted in favor of the constitutionality of Social Security in 1937. All those currently receiving Social Security benefits after a lifetime of hard work can thank the five justices who found the creation of Social Security to be constitutional.
Franklin Roosevelt had been frustrated and thwarted by having New Deal legislation declared unconstitutional, so he had proposed legislation that would have increased the number of justices on the Supreme Court to a total of 15 from nine — constitutional, but politically suspect.
Roberts’ vote was coined “the switch in time that saved nine.” He also arguably has had more impact on the current legal environment than the more prominent president who fills the pages of our history books and has his face on our dimes.
Which brings me to the upcoming presidential elections. Most of what is discussed during presidential election campaigns has little or no bearing on the law. Every lawyer and student who remained awake in sixth-grade civics class knows that the president can only approve or veto legislation.
We have Congress to thank for our laws, not our president. Yet, every four years, we conduct a figurehead charade of presidential promises, none of which can be carried out without legislative support.
My favorite illogical presidential argument runs like this: The government does not create jobs. Elect me as president and I can create jobs. Huh?
The laws created by the legislature create the rules of the game and obviously can have an impact on the job market.
So what are you voting for when you vote for president? You are voting for a head of state, a commander-in-chief of the military, an individual who can accept or veto legislation and who has the power to appoint individuals to particular offices, subject to Senate approval.
As far as impact on the law is concerned, the office of the president is responsible for enforcing the laws. While most of my dealings as an attorney are with the judicial branch of the federal government, I do have dealings with the Department of Justice through the United States Trustee’s Office and with the legal department of the Internal Revenue Service.
It is pretty clear that the president alone has little impact on the executive bureaucracy or the excellent local attorneys who work for these agencies. Regardless of who wins the election, I’m glad I’ll still be working with the same people. The difference comes in the subtle shift in focus in the leadership, a shift that is significant enough alone to influence my vote for president.
The biggest and longest-lasting impact the presidential election will have on the law will probably be based on future Supreme Court appointments. With Supreme Court justices serving for life, those appointed by future presidents will be with us long after the president is gone. Ronald Reagan is gone, and we still have Antonin Scalia.
Given a large number of 5-4 decisions that currently reverberate through our legal system, the issue that could impact our laws and lives the most in choosing our next president will be in who he selects for the Supreme Court.
So, of course, the Supreme Court was mentioned only once in the three presidential debates, and then just in passing about how the court had voted 5-4 to restrict a woman’s ability to sue for wage discrimination and how a new law had been passed to overturn that decision.
Yet, we cannot pass laws to overturn decisions on constitutionality. I’d encourage you to consider this important duty of the president when you vote. Vote your conscience and try to imagine a world 75 years from now — maybe by looking back and trying to imagine the world today without minimum wage laws and Social Security.
E. Kent Winward is an Ogden attorney. He can be reached at firstname.lastname@example.org or 801-392-8200.