Increasing numbers of people are concerned that the Supreme Court has become overtly political. Now, where could anyone get that crazy idea?
Maybe they're reading Justice Antonin Scalia's dissent (jeremiad?) in Monday's decision in the Arizona immigration case, which would sound right at home on talk radio. Here's a sample:
But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States' borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation's immigration laws?
Scalia goes on to rail against "'federal policies' of nonenforcement [that] will leave the States helpless before the evils of illegal immigration." He even went so far as to specifically reference President Obama's recent executive order on young undocumented immigrants, a legal non sequitur since the president's action is not at issue in this case.
But Scalia wasn't writing an op-ed; it's a dissent in a major Supreme Court case. The fact that it's hard to tell the difference is a warning sign that some justices are treading in dangerous territory, making themselves appear to be willing participants in our nation's highly charged ideological warfare.
Of course, politics is inherently part of the judicial system. Supreme Court justices don't come from some mystical Planet Purity, having lived lives devoid of politics or the taint of ideology. We don't recruit judges from monasteries.
But there's a difference between saying that justices live, work, and are selected in a political world and saying that when they get on the Court they're really just politicians in robes, tasked with carrying on the political and ideological mission of the people who appointed them. If that were true, the Court would become nothing more than a super-legislature, a final checkpoint along the policy-making process, rather than an adjudicator of constitutional and other legal issues. Judicial decisions must not be perceived merely as a continuation of politics by other means.
Words matter. Note the language Justice Alito used in last week's Knox v. SEIU case, in which the Court went far out of its way to make it harder for unions to engage in political activity:
During this time, the citizens of the State of California were engaged in a wide-ranging political debate regarding state budget deficits, and in particular the budget consequences of growing compensation for public employees backed by powerful public-sector unions. [emphasis added]
Here's Justice Scalia again, this time in the oral argument in the health care case, grilling Solicitor General Donald Verilli about the mandate to buy insurance:
Why do you define the market that broadly? Could you define the market? Everybody has to buy food sooner or later, so you define the market as food. Therefore everybody is in the market, therefore you can make people buy broccoli. [emphasis added]
Broccoli? Powerful public-sector unions? These aren't legal or constitutional arguments; they're recitations of Rovian talking points that more properly belong on Fox & Friends than in the Supreme Court of the United States.
It's significant that the Warren Court, which is often portrayed as the pinnacle of judicial activism, made most of its landmark decisions by overwhelming, if not unanimous, votes. Today, the five conservatives make no attempt to find broad consensus in the big cases. They seem perfectly content to make nation-rattling changes to the law with 5-4 votes, in spite of Chief Justice Roberts' empty confirmation-hearing promises to the contrary.
But the biggest evidence that the Roberts Court is playing politics is the way many of the contentious 5-4 cases are decided. This is a court willing to toss long-held precedents out the window, make far-reaching decisions based on issues that were not raised by parties to the case, take cases where there was no dispute in the lower courts, and favor corporate interests at a rate well beyond any reasonable definition of balance.
Here are just two examples that show how this works:
In the infamous case of Citizens United v. FEC, the Court was actually presented with the narrow question of whether the electioneering communications provisions of the McCain-Feingold Act apply to "pay-per-view" movies made by not-for-profits. But that's not what the Court ultimately decided. The Court's conservatives inserted other issues into the case. Lo and behold, after molding the case like judicial Play-Doh into a shape they liked, the Five miraculously announced that corporations have the same First Amendment rights as ordinary Americans to spend money to influence elections, which, to no one's surprise, has proven to overwhelmingly favor Republican candidates.
And in the just-decided Knox v. SEIU, both a political tone and a willingness to ditch precedent to reach a particular goal were front and center. As Professor Benjamin Sachs explains on AFJ's Justice Watch Blog:
Until yesterday, it was voters and legislators who got to decide whether they wanted to live in a right-to-work state. With Knox v. SEIU, the Supreme Court began to assume that decision-making responsibility for the rest of us. At least when it comes to the public sector, Knox takes a giant step in the direction of holding that any rule requiring employees to pay their fair share of the collective bargaining bill is unconstitutional. That's a dramatic departure from prior precedent. It's a striking example of judicial activism. And it's potentially an existential threat to public sector unions.
It's no secret AFJ profoundly disagrees with the substance of the Roberts Court's opinions. But we are increasingly concerned about how and why these decisions are made. And so is the American public.
Alliance for Justice just completed a poll of public attitudes about the court. Only 41 percent of voters approve of the way the court is handling its job. In addition, a majority believe it is functioning as a political institution and have serious concerns that the justices' decisions favor corporate interests over those of individual Americans.
Fifty-seven percent of voters say they are extremely concerned that the Supreme Court makes decisions based on a political agenda instead of the law. Only 11 percent say they have a great deal of confidence that the Supreme Court puts politics aside and makes decisions based on the law. Also, more than half (51 percent) say they are "extremely concerned" that the Court consistently sides with corporations over workers and consumers, while 54 percent express extreme concern that it consistently sides with powerful interests over average citizens.
Something has gone terribly wrong. The authority of the court -- and acceptance of the rule of law itself -- depends on a belief that cases are heard fairly and equitably and that everyone who comes before the court has the same chance for justice. When that trust falters, and the public feels that outcomes are predetermined by ideology or that powerful forces receive preferential treatment, the foundations of our legal system start to crumble. Our poll serves as a wake-up call that something has begun to change in the way the American people see the Court.
We're only a few days away from one of the most momentous Supreme Court decisions in memory. The fate of the health-care law and the well-being of tens of millions of Americans are at stake. But that's not all that teeters on a knife's edge this week. The very legitimacy of the Court and the integrity of our legal system are at stake as well.