The Roberts Court: Judicial Activism on SteroidsPosted: June 24, 2012
James Fallows has written an extremely interesting piece on the Robert’s SCOTUS at The Atlantic that’s worth a read and a post. We’re just beginning to see how radical and political this court can be. It’s so radical that some writers are beginning to describe its output as a form of coup d’etat.
I am not enough of a Supreme Court buff to have any confident idea of what the majority will rule on the Obama health care plan.
But confidence in the very idea that the Roberts majority will approach this as a “normal” legal matter, rather than as one more Bush-v.Gore front in the political wars, grows ever harder to maintain, especially after the latest labor-rights ruling. It is worth reading carefully this lead editorial in yesterday’s New York Times. In short, the same five conservative Justices who in their pre-appointment phase had inveighed against “judicial activism” and “legislating from the bench,” while promising to live the gospel of judicial “humility” if confirmed, went out of their way, in a ruling written by Samuel Alito, to decree new law contrary to what Congress had ordered and other courts had long approved.*
Normally I shy away from apocalyptic readings of the American predicament. We’re a big, messy country; we’ve been through a lot — perhaps even more than we thought, what with Abraham Lincoln and the vampires. We’ll probably muddle through this and be very worried about something else ten years from now. But when you look at the sequence from Bush v. Gore, through Citizens United, to what seems to be coming on the health-care front; and you combine it with ongoing efforts in Florida and elsewhere to prevent voting from presumably Democratic blocs; and add that to the simply unprecedented abuse of the filibuster in the years since the Democrats won control of the Senate and then took the White House, you have what we’d identify as a kind of long-term coup if we saw it happening anywhere else.
Jeffrey Rosen earlier wondered in an article written for The New Republic about exactly how radical the chief justice really is? The Citizens United decision alone has the ability of stomping out democracy in America as we know it.
Then came Citizens United, by far the clearest test of Roberts’s vision. There were any number of ways he could have persuaded his colleagues to rule narrowly; but Roberts rejected these options. He deputized Anthony Kennedy to write one of his characteristically grandiose decisions, challenging the president and Congress at a moment of financial crisis when the influence of money in politics–Louis Brandeis called it “our financial oligarchy”–is the most pressing question of the day. The result was a ruling so inflammatory that the president (appropriately) criticized it during his State of the Union address.
What all this says about the future of the Roberts Court is not encouraging. For the past few years, I’ve been giving Roberts the benefit of the doubt, hoping that he meant it when he talked about the importance of putting the bipartisan legitimacy of the Court above his own ideological agenda. But, while Roberts talked persuasively about conciliation, it now appears that he is unwilling to cede an inch to liberals in the most polarizing cases. If Roberts continues this approach, the Supreme Court may find itself on a collision course with the Obama administration–precipitating the first full-throttle confrontation between an economically progressive president and a narrow majority of conservative judicial activists since the New Deal.
The first indications that Roberts might not be as conciliatory as he promised came during his second term, which ended in 2007. During his first term, which his colleagues treated as something of a honeymoon, the Court had decided just 13 percent of cases by a 5-4 margin. But, in the next term, that percentage soared to 33 percent. (It would fluctuate up and down a bit over the next two years.) What’s more, the 2007 term ended with unusually personal invective, as both liberal and conservative colleagues expressed frustration with Roberts. That year, during the Court’s second encounter with the McCain-Feingold campaign finance law (which it would gut in Citizens United), Antonin Scalia accused Roberts of “faux judicial restraint,” for chipping away at restrictions on corporate speech without overturning them cleanly. Meanwhile, the liberal justices seemed angry that Roberts was refusing to budge from rigid positions in divisive cases. “Of course, I got slightly exercised, and the way I show that is I write seventy-seven-page opinions,” Justice Stephen Breyer told me in the summer of 2007, referring to his angry dissent from Roberts’s 5-4 decision striking down affirmative action in public school assignments.
President Obama attacked the Citizen’s United ruling in SOTU causing Roberts to throw a very public and historically inaccurate hissy fit.
Speaking to students of the University of Alabama law school, Chief Justice John Roberts launched a blistering attack on President Obama’s State of the Union criticism of the Court’s Citizens United decision. Calling Obama’s prime-time critique “very troubling,” Roberts complained that the President’s annual address to Congress “degenerated to a political pep rally.” Of course, when Robert’s political godfather Ronald Reagan or his sponsor George W. Bush used the State of the Union to berate, badger and batter the Supreme Court, that was just fine with the Chief Justice.
“I’m not sure why we’re there,” Roberts told the audience in Tuscaloosa, adding:
“The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according the requirements of protocol — has to sit there expressionless, I think is very troubling.”
But during the George W. Bush’s tenure, the Justices served as a prop for his State of the Union battles with the judiciary.
Bush’s Supreme politicking during his State of the Union speeches was a regular fixture of his presidency. For three straight years (2004, 2005 and 2006), President Bush denounced “activist judges” and insisted “for the good of families, children and society, I support a constitutional amendment to protect the institution of marriage.” On the very day Samuel Alito joined the Robert Court, Bush used his 2006 SOTU for a victory lap:
“The Supreme Court now has two superb new members — new members on its bench: Chief Justice John Roberts and Justice Sam Alito. I thank the Senate for confirming both of them. I will continue to nominate men and women who understand that judges must be servants of the law and not legislate from the bench.”
And throughout the presidency of Ronald Reagan, for whom John Roberts promoted the gutting of the Civil Rights Act, overturning Roe v. Wade and a dangerously ignorant policy in response to the AIDS crisis, bashing the Supreme Court was a routine occurrence.
The U.S. Supreme Court should uphold a law requiring most Americans to have health insurance if the justices follow legal precedent, according to 19 of 21 constitutional law professors who ventured an opinion on the most-anticipated ruling in years.
Only eight of them predicted the court would do so.
“The precedent makes this a very easy case,” said Christina Whitman, a University of Michigan law professor. “But the oral argument indicated that the more conservative justices are striving to find a way to strike down the mandate.”
A ruling on the constitutionality of the Patient Protection and Affordable Care Act’s individual mandate is among the last pieces of business heading into the final week of the Supreme Court’s term. Bloomberg News last week e-mailed questionnaires to constitutional law experts at the top 12 U.S. law schools in U.S. News & World Report magazine’s 2012 college rankings.
This is just more indication of the real damage brought to our country by the Reagan and Bush regimes. Just imagine what kind of abomination Romney could potentially appoint. We’ve already got a number of justices who belong to the Opus Dei Cult. All we need is a couple of weirdos that subscribe to the kinds of ideas espoused by Joseph Smith.