Thursday, June 28, 2012

The conflicted court

The Supreme Court of the United States has appeared less and less supreme in recent years. Not that its power to interpret the Constitution has been impaired but that its interpretations have seemed more and more politically partisan and less and less actually based on the rule of law. Two high points of this politically partisan court are usually cited by its critics as evidence of its right-wing bias.

The first, of course, was the Bush v. Gore decision in 2000 that stopped the count of votes in Florida and substituted the Court's own vote for the popular vote of the people in that year's presidential election. The reasoning behind this decision was so flawed and convoluted that even those who wrote it (Scalia) stipulated that it could not be cited as precedent in any other case.

The second was the notorious Citizens United decision which declared that corporations have the same rights as people! In fact, in the view of the Court, they have even more rights than people because they can make unlimited donations to political campaigns, essentially buying elections. These two decisions rank right up there with Dred Scott as three of the most egregious and outrageous ever made by a Supreme Court.

Recent opinion polls have shown that many people are cognizant of the bias being shown by the Court in its opinions and that it has lessened the esteem which they hold for that Court. They can see that, in effect, the Roberts Court has become, like Fox News, just another arm of the Republican Tea Party, the radical right wing that only believes in democracy when the majority agrees with them and that  refuses to recognize the legitimacy of democratically elected officials and democratically passed laws when those officials and those laws are not in lock step with their plutocratic agenda. The latest poll that I saw showed something like 45 percent of respondents had a negative view of the Court. Those who held positive views were considerably less and then, of course, there was a segment of respondents who were clueless and didn't know what they thought.

One wonders if such polls trouble the sleep of Chief Justice John Roberts at all. After all, his name is on this court and history will judge him as a Chief Justice based on its decisions. So far, those decisions would not assure him much of a ranking among the Chief Justices of history.

So now we come to this week's decisions.

First the Court overruled Arizona's racist "papers, please" law sending Antonin Scalia into an apoplectic dissent that must have scorched the paint on the walls of the Court chamber. Scalia's language was so over-the-top, unlawyerly, and extreme that it has prompted some to call for his resignation. But this is just the cap in a long career of extremist views for this justice. He's obviously not going to resign.

Now, today, we have the Court's decision on the Affordable Care Act. To the dismay of right-wingers everywhere - and, I think, to the surprise of many liberals - the Court upheld the law, finding it constitutional in all of its major parts. The conservative John Roberts joined with the four liberal-leaning justices on the Court to form a majority opinion. As usual, Scalia and his minions, Thomas and Alito, held the dissenting view and, somewhat surprisingly, the libertarian Kennedy sided with them.

Observers of the Court may see this as some evidence that Roberts has, in fact, become concerned with how history will view him and that this may impel him in the future to moderate somewhat his more radical right-wing instincts. Time will tell on that score. At least now we know why Scalia went bat-shit crazy with his Arizona dissent. He knew what was coming and he doesn't like losing.

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