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.”
