The Radical Activist Supreme Court
July 2, 2012 by Gregory Franklyn
There is so much to consider about the Supreme Court of The United States from the last week that my head is still spinning about what it all means. One thing has not changed and I guess that’s a good place to start. The Supreme Court is still a radical Right Wing activist court just like it was last month. Another thing that has not changed is that rulings from this court continue to be suspect due to the political and financial alliances of some of its Conservative Republican Justices.
Justices Thomas and Scalia are both close associates of the Koch Brothers and have been featured guests at invitation only Right Wing political retreats (plural) while at the same time, ruling on the Citizens United case which lifted any restrictions on the amount of money the Koch Brothers Foundations and PACs can contribute to political campaigns. Justice Thomas’ wife, Virginia, founded, fund-raised for, and chaired a Conservative Political Action Committee which advocates repealing the Affordable Care Act while her husband is sitting on the court deciding the constitutionality of key parts of it. He ultimately ruled congruent to his wife’s position.
Justice Scalia, a close personal friend of Vice President Dick Chaney, went hunting with him while ruling on a challenge to the Vice President’s Energy Task Force and ended up ruling in the Vice President’s favor. How these relationships, particularly the timing of these relationships, are not considered conflicts of interest is well beyond most people’s ability to reason. One of two things are true here. Either we, the people, are just too dim witted to understand the legal nuances of Conflict of Interest, or we have a Supreme Court that has them and nothing of any consequence is being done to address it.
Which brings me to my first question about the Supreme Authority on the Constitution of the United States. Isn’t it a conflict of interest that the very people who sit on the court are the same people who decide what constitutes a conflict of interest for a Supreme Court Justice? Wouldn’t they ALL have to recuse themselves as having a conflict of interests? But, even more important to me, is why this is permitted to continue as if nothing were wrong with it? In both cases I mentioned, the offending Justice ruled in favor of their allegiances and both rulings stand as I write this.
Interestingly enough, no corresponding controversies about political relationships are being leveled at liberal justices on the same court. Perhaps they, alone, understand the concept of objectivity in jurisprudence and carefully avoid the appearance of impropriety. That matches up pretty well with what we estimate the foundation of The Supreme Court was intended to produce when it was decided that they would be appointed for life. Justices who are above partisan allegiances and have graduated into an elite college of legal minds that guide the progress of our nation without such petty influences.
This specific court has ruled on strict political lines, with precious few exceptions, in nearly every case since Chief Justice Roberts and Associate Justice Alito were sworn in. Being a 5 to 4 majority, gives this Court the color of an arm of the Republican Party nearly equal to FOX Views.
Granted, we’re imperfect and incomplete, but surely we can agree that Justices of The Supreme Court should not be representing partisan Political views with such regularity. We had better hope that a challenge to Roe v Wade doesn’t get presented to THIS Court. This Court has already disregarded 100 year old precedents in Citizen’s United and Montana’s challenge to it. And, let’s not forget that the foundation of this Court’s ruling on Citizen’s United hinged on a sentence that was inserted by a clerk after the fact of the ruling on anti-trust law over 100 years ago. It was a well known typo, for crying out loud!
This week, the Supremes rule, on party lines as usual, that Montana’s 100 year old elections law, designed to counteract corporate interests in electoral politics, is unconstitutional on the basis that they had just ruled that Corporations are people for the purposes of free speech and that money is speech! In Montana there were 2 Copper Barons around the turn of the 18th Century that had corrupted the political environment, there, to the point where a Congressman, who had been elected by that corrupt system, was denied a seat in that Congress because the seat had been, effectively, purchased for him by a company. The House of Representatives simply refused to seat him. The people of Montana responded by enacting laws that prevent a company or Corporation from dominating electoral politics in Montana. It worked,,, for 100 years,,, that is until this past week when the Supreme Court told Montana, and 23 other States who have similar restrictions on Corporate contributions to political candidates, that they are required to open up the political process to what effectively amounts to hostile corporate take-overs of local and State elections in the same way Citizen’s United does for National ones. They doubled down on Citizens United!
It’s clear that this Court, along with their Conservative Republican counterparts, wants the United States to be run by big business. That wouldn’t be such a problem if it weren’t accompanied by a concomitant wave of Republican Governors and State Legislatures pushing a huge, nationwide effort to suppress voting by enacting regulations that make it harder for a voter to identify him/herself at the poles, and purging voter rolls to fix a problem that doesn’t appear to exist, but does eliminate a lot of minority voters, mostly Black, who also have a tendency to vote Democrat.
Rick Scott in Florida is the most aggressive purge in the nation and he’s currently under pressure from the Department of Justice, to knock it off. Those restrictions unfairly affect students and minorities, both of which tend to vote Democrat. This ruling plays right into the Republican strategy for dominating electoral politics with huge amounts of money, just like Montana 100 years ago, and eliminating voters who might vote for a Democrat. But, that’s a discussion for another day.
Add to that, the spate of newly elected Tea Party Republicans in both Governor’s offices and Legislatures that are enacting laws to eliminate Unions and the power of the people to defend themselves against the worst abuses by big business. Unions are the People’s version of a Corporation. It’s the only vehicle working people have for any hope of matching the money big business can use to dominate electoral politics. Taken together, all of this is a serious blow to the concept of social equality professed by our Constitution. And, this Court seems to be OK with that!
Next, we have the Arizona Bill 1070 Immigration Law which the Court struck down on the basis that Immigration Law Enforcement is not for the States to decide, but is the jurisdiction of the Federal Government. But it did leave the Racial Profiling element of the law alone to be considered later when someone objects to it and brings a case against it. Which seems weird when you consider another ruling that was handed down that same week. The Supreme Court upheld the constitutionality of the Affordable Care Act but not on the basis on which it was argued. The court held that the Mandate to buy insurance under the Affordable Care Act was NOT Constitutional on the grounds of the Interstate Commerce Clause, but Chief Justice John Roberts searched the Constitution for another reason to uphold it, unlike in the Arizona 1070 case. Here, Roberts found that the Mandate can be considered a TAX, which the federal Government DOES have the power to enact and enforce. It’s a good ruling, but unlike this Court, and with the exception of the Chief Justice, it was decided on Party lines as usual
I think that Chief Justice Brown was signaling that he recognizes how polarized on party lines his Court really is and recognized how much trouble his Court is in, in the minds of the citizens on the subject of Constitutional objectivity. This Court is the most politically activist court in my lifetime and, possibly, much much longer than that. You can tell because Republicans aren’t complaining much. That speaks louder than words ever could that the Court is acting to their liking.
In stark contrast, Democrats are rightly hurling charges of judicial activism with vigor over such rulings as Citizen’s United and the Montana Elections case. Perhaps chief Justice Roberts wanted to hand one over to the Liberals in an attempt to, at least, put up some window dressing of constitutional objectivity. That remains to be seen, but there is no question that the Supreme Court of the United States is heavily colored by Conservative Republican Political Activism despite the Affordable Care Act ruling. How they rule on voter suppression and Roe v Wade in the cases that are surely headed their way, will tell us everything we need to know about that!
Republicans were so confident that this Court would uphold Republican Policy like they have in so many cases before it. We Liberals were sitting on the edge of our chairs, biting our nails waiting for the ruling to be handed down. We were equally sure this Court would rule like it usually has. I have enjoyed myself watching Republicans across the board lose their frigging minds over this ruling. They were so counting on this being Obama’s Waterloo. This could have been the last nail in the coffin of what the Republican Party has been dedicated to burying since January 20, 2009! I feel vindicated, as I waltz into my July 4th vacation, that the Republican Party knows a little bit more, today, about what it usually feels like to be a Liberal Democrat and I have no shame about enjoying what it usually feels like to be a Republican. Both are kind of nice to experience, actually!