Copyright © 2012 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved
Even those of us who had predicted in advance that the current Right-wing majority on the U.S. Supreme Court would rule that the Affordable Health Care Act President Obama squeezed through Congress in 2010 was unconstitutional were taken aback by the sheer meanness and brazenness of the comments made by the five Right-wing justices during the six hours of oral argument March 26-28. Antonin Scalia said that if the court found the law’s key provision — the so-called “individual mandate” that requires every American either to buy health insurance or pay what’s variously called a “penalty,” a “fine” or a “tax” — unconstitutional, then they’d have to throw out the entire law because the judges would be making themselves a super-legislature if they tried to pick and choose what parts of the rest of the law they should keep and what parts they should toss.
Scalia is no stranger to vituperation. This is the man who, when he dissented from the landmark Lawrence v. Texas (2003) case invalidating state anti-sodomy laws, began his opinion with a term coined by authoritarian 19th century German Chancellor Otto von Bismarck: “The majority has mistaken a Kulturkampf [culture war] for a fit of spite.” In the health care hearings, Scalia used such Right-wing talking points as the “cornhusker kickback” (an exemption on Medicaid funding for the state of Nebraska — later reversed — to get Nebraska Senator Ben Nelson to vote for the law), the “broccoli” line (the jibe from talk-radio hosts that if the government could make you buy health insurance, they could make you eat broccoli) and naming Obama’s political affiliation as the “Democrat” (instead of “Democratic”) Party. But the question from the bench that stabbed the deepest into the Obama administration’s case for the law came from the presumed “swing vote,” Justice Anthony Kennedy: “Assuming for the moment that [the mandate] is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?”
In other words, Kennedy was turning Supreme Court jurisprudence upside down. Under normal circumstances, laws passed by Congress or a state legislature are presumed to be constitutional, and the burden of proof is on the challengers to prove they are not. Most laws are judged on a so-called “rational basis” test, which asks if the law is intended to serve a rational purpose, and its provisions actually achieve (or can achieve) that purpose. In some areas — notably civil-rights challenges — the courts apply higher levels of review “intermediate,” “heightened” or “strict” scrutiny — in which laws that make distinctions based on race, gender, religion or other civil-rights classifications have to meet a higher standard to pass muster. But Kennedy was saying that the Affordable Care Act in general and the “individual mandate” in particular were presumptively unconstitutional, and the burden was on the government to prove that they were constitutional.
This is what President Obama was talking about when he made his now-infamous statement in early April that “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, it’s a good example, and I’m pretty confident that this court will recognize that and not take that step.” Obama’s point was that he was confident that the court would not reverse nearly 80 years’ worth of precedent that has given Congress great power to regulate the national economy under Article I, section 8 (3) of the Constitution, which empowers it “to regulate Commerce … among the several States.”
Not that this helped him much when it came to the Right-wing attack machine. The entire apparatus of the Right’s propaganda operation swung into action and offered this as yet more “proof” that Obama fundamentally rejects the Constitution in general and any of its restrictions on government power in particular. They read Obama’s remark as an attack on the whole concept of judicial review: the idea that the courts in general and the U.S. Supreme Court in particular have the authority to invalidate laws they find in violation of the Constitution. One judge, Jerry Smith of the Fifth Circuit Court of Appeals, tore into a government attorney defending the Affordable Care Act in a different case and said, “I would like to have from you, by noon on Thursday [three days after the hearing], a letter stating what is the position of the Attorney General and the Department of Justice in regard to the recent statements by the President stating specifically and in detail, in reference to those statements, what the authority is of the federal courts in this regard in terms of judicial review.”
It turned out that Jerry Smith is an appointee of President Ronald Reagan and, like 15 of his 20 colleagues on the Fifth Circuit (which represents Smith’s home state, Texas, and most of America’s other major oil-producing regions), has major financial holdings in oil and gas companies. It also turned out that he was an oil-industry lawyer before he was appointed to the Court of Appeals. And his fealty to the Right-wing cause is so unquestionable that Rush Limbaugh congratulated Smith and called him part of “a team that’s opposing this President and intending to make him a one-termer this November at the ballot box.” So much for the idea that judges are impartial — or reasonably impartial — arbiters of law and fact whose job is to come up with an outcome that upholds the Constitution, the rule of law and basic notion of justice and fairness.
No, to Rush Limbaugh and his fellow Right-wing propagandists, a good judge is one who’s on their “team” and a bad judge is one who’s on the other “team.” A “good judge” is one who consistently rules for the rights of corporations over those of individuals, for industry over the environment, for capital over labor, for whites over people of color, for men over women, for straights over Queers, for religious believers over nonbelievers, for police over criminal defendants and for the 1 percent over the 99 percent. By these standards, four of the current nine members of the Supreme Court — John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas — are “good judges.” Anthony Kennedy has usually been a “good judge” — he’s been a reliable vote for corporate power over individual rights, including writing the loathsome Citizens United decision that opened the floodgates for unaccountable, secret corporate donations to political campaigns — though he went spectacularly off their reservation on at least two issues: Queer rights (he wrote the majority opinion in Lawrence v. Texas) and executing juveniles (he wrote the opinion declaring that unconstitutional).
And in the last 30 years, it is “good judges” — in the Right’s meaning of the term — that have come to dominate the federal judiciary, not only at the Supreme Court but throughout the system. As Nan Aron, founder and president of the Alliance for Justice (described on its Web site as “a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society”), told Chris Hayes on an April 8 MSNBC talk show, the current makeup of the federal judiciary is the result of “an effort that began with President Ronald Reagan to place individuals on the federal bench who had a very political agenda: i.e., opposition to abortion, opposition to affirmative action, support for school prayer. And we have seen from that moment till now, an effort, a movement effort by ultra-conservatives, to stack the courts at every level, including the Supreme Court, who will essentially impose a political agenda on the rest of the country.”
That political agenda is an attempt to return the function of the federal courts, and especially the Supreme Court, to the Right-wing one of protecting property over people which it pursued from the start of the 19th century to the mid-1930’s. Not many people know this — it’s probably such news to Jerry Smith it’s a pity I can’t order him to write a three-page paper on it — but the U.S. Constitution makes no mention of judicial review. The power of the Supreme Court to declare laws unconstitutional was made up by its second Chief Justice, John Marshall, in the 1803 case of Marbury v. Madison (the “Madison,” by the way, was James Madison, who probably knew more about the U.S. Constitution than anyone who ever lived — he was part of the Constitutional Convention, he took its minutes and he wrote most of the main Constitution as well as the Bill of Rights) as a way for Marshall, a holdover appointee from president John Adams of the Federalist Party (precursors to the modern-day Republicans), to block the progressive program of Thomas Jefferson of the Democratic-Republican Party (precursors to the modern-day Democrats).
Through most of its history the Supreme Court used the power of judicial review pretty much the way John Marshall had planned it. In Dred Scott v. Sandford (1857), a case brought by an escaped slave seeking to win his freedom, the Court ruled first of all that an African-American wasn’t even entitled to sue in the federal court, that Blacks “had no rights the white race was bound to respect,” and even if he did have the right to sue, no state had the right to prohibit slavery within its borders. The good news was this opinion was eventually overturned; the bad news was it took the carnage of the Civil War to do it. After the war the Court reinterpreted the Fourteenth Amendment, originally passed to secure the civil rights of the former slaves, as a shield to protect corporations against government regulation. In 1886, in Santa Clara Co. v. Southern Pacific Railroad, the Court declared that corporations were “persons” within the meaning of the word in the Fourteenth Amendment. In 1883, they had declared the 1875 federal civil-rights law unconstitutional, and in 1896 they followed that up with Plessy v. Ferguson, which held that racial segregation was constitutional.
The Court continued on this path through the first three and one-half decades of the 20th century, ruling minimum-wage and maximum-hour legislation unconstitutional as a violation of the supposed “freedom of contract” of workers to agree to work longer hours for lower wages. They passed a series of rulings that essentially made organizing labor unions illegal. Throughout the first term of President Franklin Roosevelt, with the nation mired in the worst economic disaster (so-called “depression”) of its history, the Court threw out statute after statute in Roosevelt’s recovery plan on the ground that it interfered with the freedom and civil rights of corporate “persons.” Roosevelt, whose reaction to the Supreme Court’s decisions made Obama’s relatively mild comments seem wimpy by comparison, fought back after his landslide re-election victory in 1936 and proposed to expand the Court from nine justices to 15.
This bill was denounced as “court-packing” and went nowhere in Congress, but though Roosevelt lost that battle he won the war. In 1937, Justice Owen Roberts, the Anthony Kennedy of his time, stopped voting to invalidate the New Deal economic laws and started voting to uphold them — which comedians of the time joked was the proverbial “switch in time that saved nine.” What’s more, Roosevelt served so long — 12 years — and was followed in the presidency by three more Democrats and a moderate Republican who appointed a new breed of progressive justice to the court: Hugo Black, William Douglas, Earl Warren, William Brennan, Abe Fortas, Thurgood Marshall and others. The court swung decisively to the liberal side in those years and ruled in Brown v. Board of Education (1954) that the Fourteenth Amendment meant what its words said it meant — that whites and people of color were equal before the law in this country — and in later decisions it expanded the rights of criminal defendants, established the “one man, one vote” rule in state legislative elections, upheld the 1964 Civil Rights Act (similar to the 1875 act the Court had overturned in 1883), and read an implied “right to privacy” into the Constitution that granted women the right to use birth control and, ultimately, abortion.
Then the nation’s politics realigned again. Richard Nixon won the Presidency in 1968 after a campaign in which he railed against the Supreme Court’s liberal decisions, and the combined 57 percent of the vote for Nixon and Right-winger George Wallace in that election spelled the end of the New Deal coalition and the start of the Right’s dominance of American politics that has lasted ever since. Nixon’s crushing defeat of George McGovern in 1972 and Ronald Reagan’s bare-majority win in 1980 gave the Right the chance to make more Supreme Court appointments that would return the Court to its traditional Right-wing role. Progressive appointees sometimes slipped through the gantlet of Republican Presidents — Harry Blackmun (Nixon), John Paul Stevens (Gerald Ford), David Souter (George H. W. Bush) — but the Right mobilized to make sure such “mistakes” never happened again.
When George W. Bush became President through a decision made by a highly polarized, politicized Supreme Court, he took the task of vetting potential court appointees away from the American Bar Association and gave it to the Right-wing Federalist Society (note the historical significance of the name) and made sure to pick two “movement conservative” justices, Roberts and Alito, who would join with the three holdovers from Reagan and Bush, Sr. — Scalia, Kennedy and Clarence Thomas — to form an unshakable Right-wing majority on the Court. The result has been a run of cases in which the current majority has run roughshod over century-old prejudices to eviscerate civil-rights laws (especially those protecting women against job discrimination), boost the power of corporations to influence elections, abolish virtually all possibility of gun control and (in a currently pending case for which they’ve asked for reargument, as they did in Citizens United) quite likely remove the ability of foreigners to sue in U.S. courts for the bad acts of U.S. corporations in their home countries — a precedent that goes all the way back to the 1790’s.
As Nan Aron wrote in an April 5 Huffington Post article (http://www.huffingtonpost.com/nan-aron/supreme-court-healthcare_b_1405549.html), “The five conservatives are doing precisely what they were chosen to do — take the country back to the days before 1937, the last period when a Supreme Court posed a willful challenge to the economic polices of the elected government. Listening to the conservative justices during oral arguments, and considering other trends in the Court’s decisions, it’s easy to come to the conclusion that some justices are trying to bring us back to an era where business interests rule, the interests of everyday people are secondary to profit, and economic and social power is limited to a powerful few.”
If the current five-vote Right-wing majority on the Court overturns the Affordable Care Act, they will be serving notice that 80 years’ worth of interpretation of the Commerce Clause to allow government intervention to protect ordinary citizens against giant corporations is at an end. They will also be going against their own precedents — as Aron noted, the Court ruled as recently as 2005, in Gonzalez v. Raich, that the Commerce Clause allowed Congress to ban the medical use of marijuana even if the marijuana, or the people using it, never crossed state lines. As Justice Scalia wrote in the Court’s opinion in that case, “Where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective” — precisely the position the Obama administration was asking the Court to take to uphold the individual mandate in the Affordable Care Act.
When the Supreme Court was still dominated by progressive justices, the Right screamed “judicial activism” every time the Court acted to protect the rights of people of color, women, criminal defendants and, eventually, Queers. But the current Court’s position — which boils down to, “The government can regulate under the Commerce Clause to do things we like, like banning medical marijuana; but it can’t regulate to do things we don’t like, like expanding access to health insurance” — is, it seems to me, the very definition of “judicial activism.”