The Supreme Court Wasn’t Designed For This Political Heat

Robert Borosage

Supreme Court Justice Antonin Scalia’s sudden death has detonated a political furor over the nomination of his successor. Senate Majority Leader Mitch McConnell (R-Ky.) declared total obstruction, announcing that the nomination of a new justice should await election of a new president, essentially promising an unprecedented nearly year-long vacancy on the U.S. Supreme Court.

Republican senators rushed to line up behind McConnell, while presidential contenders, senators Ted Cruz (Texas) and Marco Rubio (Fla.), pledged to filibuster any nomination if necessary. President Barack Obama vowed to forge ahead, condemning the notion of leaving the Supreme Court short-handed. Both Democratic presidential candidates railed at the Republican obstruction.

This confrontation is yet another example of the polarization and dysfunction of Congress and virtually all U.S. politics. But it also shows how politicized the Supreme Court — and federal courts generally — have become – particularly since Obama’s nominee will be seen as swinging the ideological majority on the court.

If Republicans go through with their promised obstruction, the dispute will be incorporated into the fierce partisan rhetoric in this fall’s elections. Each party nominee will seek to rally his or her base voters with the threat and opportunity posed by the empty seats on both the Supreme Court and many appellate courts. Republican senators in swing states will likely be assailed for their partisan obstruction of Obama’s nominee.

But, suggestions that this will be a central issue in voters’ minds are overdone. Most voters won’t decide to vote for a president or a senator to consolidate a majority on the Supreme Court or to punish or reward Republicans for obstruction. Jobs, wages, the war on terror, trustworthiness and party division are all likely to weigh far more than the fight over the next Supreme Court nominee.

Republicans, for example, have effectively blocked Obama from filling vacancies in the Federal Appeals Courts for two years without much notice. The fight over Scalia’s replacement lifts the visibility of the issue, but it will still be low on voters’ list of key concerns.

What the coming battle will do, however, is continue to politicize the Supreme Court, exposing judicial decisions as political choices rather than legal ones. Even as contention over social issues — civil rights, women’s rights, gay marriage, LGBT rights — continues to rage, the new populist movements in both parties will likely increasingly challenge the court for its corporatist ideology and elitist composition.

The Supreme Court is not designed to take this heat. Under the U.S. Constitution, the Supreme Court was designed as the “least dangerous branch.” The executive branch, led by the president, and the legislative branch, Congress, are the political branches of government. Each claims a mandate from voters. They are charged with making the laws and administering them. They are the arena for political combat and compromise.

The judiciary, on the other hand, is limited to determining what the law is, as applied to specific facts in specific cases in dispute. Early in the republic, under Justice John Marshall, the Supreme Court asserted the power to review whether the laws passed by the Congress and signed by the president accorded with the Constitution. But this was a power to be used cautiously, with deference to the choices of the political branches. Limits imposed by legal discipline required judges to respect precedent and to decide only on the facts in the case before them. Lifetime appointments were justified as insulating the justices from politics.

To this day, nominees parade before Congress pledging fealty to these principles. “We don’t sit here to make the law, to decide who ought to win,” Scalia noted, “We decide who wins under the law that the people have adopted.”

In his Senate confirmation hearings, Chief Justice John Roberts famously used a baseball analogy, describing himself not as a pitcher or batter, but as an umpire — whose only job was to call balls and strikes.

These protestations are — and for the most part always were — nonsense. From the start, the Supreme Court was an intensely political institution. Its decisions would delineate the balance of power between the other branches of government, between the federal power and the states, the balance between corporate rights and labor rights, between creditors and debtors, the scope and limits of American liberties.

A History of Politics

The court has tended to lag behind changing political opinion — generally serving as a brake, not a goad to change. It reflected and helped to articulate establishment consensus — and establishment divisions. The court’s decisions have inevitably been at the center of crucial U.S. political debates. A conservative court, for example, legitimized segregation in Plessy v. Ferguson, formally ending the post-Civil War Reconstruction. As the great industries built up during the Gilded Age at the turn of the 20th century, court majorities read an individualist, free-enterprise economics into the Constitution. Among other things, court rulings outlawed unions as a restraint of trade.

That conservative era was overturned with the New Deal. Justices — their minds concentrated by President Franklin D. Roosevelt’s threat to enlarge, or “pack,” the court — got out of the way of expanded federal action. The Supreme Court’s unanimous 1954 decision in Brown v Board of Education ruled separate-but-equal unconstitutional, and spawned billboards across the South braying “Impeach Earl Warren” — referring to the Supreme Court chief justice, a Republican governor of California appointed by President Dwight D. Eisenhower.

Scalia, a Reagan appointee, was at the center of the current court’s five-person majority of right-wing activist judges. Part of a concerted conservative effort to take back the courts, they were nominated by Republican presidents in the flush of the conservative era ushered in by President Ronald Reagan.

Scalia and his colleagues are known for their efforts to roll back or retard the advance of socially liberal reforms in int United States — undermining affirmative action, gutting the 1965 Voting Rights Act, chipping away at privacy and abortion rights. They failed by one vote to overturn Obamacare and to deeply curtail reproductive rights. They became the rear guard of a conservative era in retreat. They even managed to choose a conservative president in Bush v Gore, a 2000 decision so out of bounds that the court announced it had no precedential value. (When asked to defend Bush v. Gore in later years, Scalia would snap: “Get over it.”)

Naturally, they deny any such intent. Scalia touted his commitment to originalism — the original intent of the Founding Fathers — and textualism — that the text of the Constitution and laws counts, not the histories of the legislative process or the constitutional conventions. In some areas, such as the Sixth Amendment rights of people accused of crimes, Scalia ruled in ways that probably conflicted with his own political views.

A ‘Big Business’ Court

With less attention, the five conservatives — with occasional help from the court’s moderate justices — emerged as the most pro-corporate court in history. Scalia and his four conservative colleagues (Roberts, Samuel Alito, Clarence Thomas and Anthony M. Kennedy) are five of the 10 most pro-business Supreme Court justices, according to a review of business decisions over 65 years, from 1946 to 2011. Alito and Roberts rank at the top.

The conservative majority weakened worker rights, undermining unions. Big business benefited from the increasing scope to summary judgment, higher bars to class actions, higher barriers to plaintiffs and greater scope for arbitration. With two key decisions, Citizens United v Federal Election Commission, and McCutcheon v Federal Election Commission, this gang of five overturned precedents to open the floodgates to corporate political contributions and unlimited billionaire spending. As Jamie Raskin, professor of constitutional law at American University, summarized, where the courts at the turn of the century read “individual free-market ideology into the Constitution,” the Roberts court has read “corporatism into the Constitution,” expanding the rights of corporations far beyond anything ever imagined by the Founders.

“The Roberts Court is the most pro-business court since the mid-1930s,” said Erwin Chemerinsky, the dean of the law school at the University of California, Irvine. “This helps understand it far more than traditional liberal and conservative labels.”

With Scalia’s death, the Supreme Court is now viewed as split 4-4 liberal and conservative on social issues, with Kennedy lining up with liberals on choice and gay marriage. On corporatism, as the study found, the four remaining conservatives remain extremely pro-business, but “the liberals only moderately liberal.”

Scalia’s departure will stall the conservative effort to destroy public service employee unions, because the impending Friedrichs v. California Teachers Association case, which might have devastated public-service employee unions, is now likely to end in a tie — confirming the lower court decision upholding union rights.

With populist movements roiling both parties, and Americans increasingly seeing the economy as rigged and U.S. politics as corrupt, the Supreme Court will necessarily come under even greater attack. The justices were all educated at Yale or Harvard Law School, with practices in corporate firms, government or academia — a far remove from the legal hassles of working and poor people. They are largely reflective of a corporatist, internationalist establishment that is under attack from both right and left for rigging the rules for the few and against the many.

Scalia, a jurist whose extreme views, acerbic wit and writings, made him a source of controversy, is gone. But the bitter political controversy around the Supreme Court and its nominees, including his successor, will only intensify.


This article was originally published by Reuters.

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