The Supreme Court Wrecking Ball

It is pretty remarkable, reading reactions to the Supreme court ruling on Obamacare, to see people writing in the New York Times who are supposed to know what they are talking about saying such stupid things:  Thomas Friedman tells us, "I was inspired by a simple noble leadership impulse at a critical juncture in our history--to preserve the legitimacy and integrity of the Supreme Court as being above politics." And Adam Liptak, who is the Times' Supreme Court correspondent, a Yale graduate, seems incapable of the most rudimentary analysis, saying, "In the last term, the Roberts court proved itself resistent to caricature...Roberts recast the legacy of his court."


The fact is, this one decision by Roberts did not undo the radically rightward posture of the court, and in fact, as Pamela Karlan, a Stanford professor of public interest observed, it did just the opposite. By ruling Congress could not pass laws under the commerce clause, but only under its right to tax, Roberts served notice the Congress could do precious little in the future, without his stamp of approval. 

Under the commerce clause and the clauses which allow Congress to provide for the public welfare, and under the enforcement powers of the 14th ammendment the Congress was able to pass the New Deal and to forbid landlords from rejecting tenants on the basis of race or religion; it was able to prohibit development of fragile wetlands; it was able to establish Medicare and to require schools receiving federal aide to give girls equal opportunity to play sports. Under its role in promoting the general welfare, it could fund the National Institutes of Health and under its 14th amendment powers, it could prohibit local laws which discriminate against voters of certain races with bogus voter ID laws. 


All of this is under attack by right wing extremists, and they now know they have a sympathetic court, at least 4 members of that court on whom they can rely.


Adam Liptak tells us the court is no longer a 5 conservative, 4 liberal court of idealogs, and the chart (reproduced from the Times article above) shows, he says how true this is. But if you stop to really look at this chart, it suggests exactly the opposite. In cases where there is a substantial social content, i.e. where it's a powerless individual against an authority, like the strip search case, or the case of 14 year old defendants facing life sentences or the case where a defendant faces a plea bargin, you have the Scalia, Thomas, Alito, Roberts tetrad voting for entrenched power always. The fact that Kennedy sometimes switched to vote with the liberals does not make the court any less predictably conservative. 

Of course, half the cases are decided by 9-0 votes, but those are the cases which have no social/political aspect. When values and politics are at stake, the four horsemen of the radical right are to the right of Rush Limbaugh, and with Justice Scalia channeling Limbaugh, one might think Romney will nominate Limbaugh to the Court, if he gets the chance. Why not? 


The Times editorial board got it right when they said, "They have been radical innovators, aggressively stepping into political issues to empower the court itself."


If Romney wins this election, we are in for decades of conservative ascendancy, through the court. 


If Obama wins, there is at least a chance, if he has enough Congressman winning with him, he could take the advice scholars have given:  Add two new Supreme Court Justices during his term and two new justices for each new presidential term until 19 have been seated and allow only the most recent 9 to vote on decisions. That way the court could be openly political as it now pretends not to be, and it would reflect the trend in electoral politics, as the tide ebbs liberal or conservative. 


But at least we would escape a conservative court dragging us down when the rest of the country has changed its mind--which is just what happened during the Great Depression and which almost sunk us then.