It has been a bad year for democracy. With a distinctly legalistic, high-minded and scholarly tone to mask a hypocritical, over-reaching, ideological assault, the Supreme Court of the United States is actively reshaping American democracy.
Exchanging their legal robes for a shot at legislative policy-making, while shattering conservative vows of judicial restraint, the Court first turned corporations into people (Citizens United v. Federal Election Commission). Not satiated by empowering inanimate entities, next up for the Court was to disempower the real thing: people. The court opined that people who, by majority vote, create an association at their work place, lack the right to self-governance and cannot ask those who receive benefits to pay their "taxes" for the organization's services.
Making such a ruling required the Court to not only overturn decades of precedence, but also to put forth an answer to a question that was not even briefed, or argued, before them. As Justice Sotomayor wrote, "Not content with our task, prescribed by Article III, of answering constitutional questions, the majority today decides to ask them as well."
Just this week, the Court shut the door on Montana's effort to allow democracy to flourish in its state. And now in the case of the Affordable Care Act, the Court seems determined to apply its activist brush to one of the most important pieces of legislation to be passed since the creation of Medicare and Medicaid, with no more than gossamer of a legal argument. Searching for some chink in the armor, the fate of the ACA rests on a determination of whether or not the Commerce Clause permits the federal government to mandate that every American purchase health care.
A recent Bloomberg poll of top American Constitutional law scholars had 19 of 21 scholars stating that the Court should, on Constitutional grounds, uphold the health care legislation. Yet only 8 of those same 21 scholars expect the Court to do so. That disparity bodes ill for the future of any socially, or economically liberal policy put forth by Congress or President Obama. The Court has essentially decided who will win the policy battles to come.
We are clearly dealing with a Supreme Court that is no longer content to preserve the canon of the Constitution, or allow for adaptations that extend the Constitution's promises of freedom and justice to disenfranchised populations (as is the case in with both health care and immigration legislation). A powerful majority of the Court has mapped out a policy-making agenda based on their personal views of how government business should be conducted, and they are determined to stay that course regardless of the intended limitations on the scope of their power. Our Supreme Court is no longer the Founding Fathers' expected check on executive and legislative overreach in our system of checks and balances, but a partisan tipping the scales to its ideological agenda.
Combined with a Congress gripped by demosclerosis (the crippling interplay of special interests and government) the Court's policy-making agenda is allowing for the institutionalization of a new American oligarchy. From the rampant, reckless financial speculation of the Aughts, to Citizens United, and now onto certain states' challenging of the Affordable Care Act, an incredibly wealthy, and even more incredibly well connected handful of individuals are attempting to turn their smoking-parlor notions of a corporatist state into an American reality. The Koch Brothers, Sheldon Adelson and Harold Simmons are part of an ultra-minority constituency that is seeking not to preserve the position and power of the 0.1%, but to expand it in pursuance of Milton Friedman's free-market fundamentalist doctrine that has so crippled the domestic, and the global economies.
Those Americans who, today, see the Affordable Care Act and the other falsely-labeled "socialist" policies of the Obama administration as unwanted intrusions upon their individual freedoms will find themselves under the leadership of the aforementioned ultra-conservative billionaire oligarchy when their power-grab takes full-hold of our country's political agenda. Americans can no longer trust that the Supreme Court will use the Founding Fathers' Constitutional thoughtfulness as a check on legislation put forth by the other two branches.
Instead, we find that the Court, with Congress mired in an historic logjam, has taken up the mantle of the Conservative cause and has read policy prescriptions into cases where there was no such issue up for judgment. As the checks and balances of our democracy erode, we move ever closer to a future where all the benefits of American economic growth are funneled to the pinnacle of our country's income scale, and to major corporations whose personhood takes precedence over citizens. Were that situation to come about, we might find ourselves looking back fondly at the sad state of affairs today.
Co-authored by Matthew Kessler Cleary