This piece originally appeared on Huffington Post.
Eric Segall, a professor of constitutional law at Georgia State University, has just written a provocative book called Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges. The thesis is that the Supreme Court, unbound by any court above it, unfastened by the vagueness of constitutional text, and uninhibited by the gift of life tenure, operates like a freewheeling political "veto council" and not like any court that we would recognize as doing judicial work. Professor Segall challenges the legitimacy of the Court's decisions and essentially mounts an attack on the whole institution of constitutional judicial review except where the text of the Constitution is perfectly plain and clear.
It is easy to share Professor Segall's exasperation these days, but his argument is not wholly convincing. It understates how often our other courts--federal appeals and district courts and state courts--operate in a political vein and how often they too find themselves in deep ideological conflict. It also understates how clear, coherent, and logical the Warren Court was when it interpreted even vague constitutional language, like "equal protection" or "freedom of speech." Yet, Segall's clarion call to roll back judicial review today will be read by conservative judges as an invitation to negate and undo essential lines of doctrinal development that began in the Warren Court, especially the "right to privacy" decisions under Due Process, like Griswold v. Connecticut and Roe v. Wade, which Professor Segall in no uncertain terms asserts were wrongly decided.
The claim that the Supreme Court is "not a court" distracts us from what is truly at issue today. The Supreme Court is a court alright--indeed, it is the most powerful court in America, perhaps the world, and there's not much getting around that. It takes cases and controversies, writes opinions that refer to precedents and principles, and operates with the full panoply of constitutional powers reserved to the judiciary. The problem is that it is not a court committed to the rights of the people or to strong democracy unencumbered by corporate power. Indeed, it acts with most energy vindicating the rights of the powerful and the unjust. Alas, this hardly makes it an outlier in American history.
With its 2010 decision in Citizens United, the Roberts-led Court essentially cemented the institution's return to a class-bound right-wing judicial activism. Just as the Supreme Court went to war against social reform and President Franklin Delano Roosevelt's New Deal in the 1930s, just as it nullified the meaning of Equal Protection in sanctifying "separate but equal" in Plessy v. Ferguson in 1896, just as it expressed the Supreme Court's pro-slavery and racist jurisprudence in the Dred Scott decision in 1857, the Citizens United decision secured the contemporary Court's unfolding legacy as the unabashed champion of corporate power and class privilege.
The 2011-2012 Supreme Court Term
Several cases currently on the Court's docket will tell us whether the Roberts Court will accelerate its assault on public policies that advance the rights and welfare of the vast majority of "natural persons" in the country. Consider:
Legal War on "Obamacare": Health Care Reform and the Contractible Commerce Clause: Of course, the blockbuster of the Term is the cluster of cases that the Court is hearing on the constitutionality of Obamacare. There are two principal challenges to the Patient Protection and Affordable Care Act. The first, and certainly the one with the most political traction on the GOP campaign trail, is the claim that Congress has exceeded its Commerce Clause powers by compelling taxpayers to buy themselves health insurance or else pay a penalty in the program. However, the political ubiquity of this claim contrasts sharply with its feather-like legal force. Commerce Clause jurisprudence is replete with cases of Congress regulating national economic policy by compelling individuals to take actions that they would prefer not to take, such as serving customers in their restaurant that they don't want to serve or recognizing a union in their factory and reinstating workers who they fired for organizing it (see my Report for PFAW Foundation, The True Spirit of the Union: How the Commerce Clause Helped Build America and why the Corporate Right Wants to Shrink It Today, for a detailed accounting).
The ACA comes well within Congress's broad authority to address issues of national importance that affect the lives of millions of people moving and working in the streams of interstate commerce. Despite recent efforts by conservative Justices to constrict Congress's powers under the Commerce Clause, the vast majority of lawyers still believe that such powers are expansive and will be upheld even by the Roberts Court. An ABA poll of legal academics, journalists, and lawyers that allowed respondents to remain anonymous showed that fully 85% believe that the Court will uphold the ACA in full, and with a 6-3 vote seen as the most likely outcome. While the Supreme Court in the Citizens United era has been ready and willing to ignore precedent and defy logic in order to achieve its political goals, this law is so mainstream that even they are not expected to do so in this case.
The second challenge, a bit of a sleeper that saw little success in lower courts but now fascinates conservative lawyers, is that Congress has exceeded its powers under the Spending Clause and violated federalism by tying too many strings to federal Medicaid funding and thereby "coercing" states into accepting federal policies. The idea is that Medicaid has grown so big and pervasive that any conditions attached to it constitute a kind of Godfather offer that the states simply cannot refuse. From a doctrinal standpoint, the claim is somewhere between unlikely and silly, which is why no federal law or program has ever been found to unconstitutionally coerce the states under the Spending Clause . Experts in the ABA poll mentioned above predict that this outlandish argument will be rejected in an 8-1 split. A decision to strike down the ACA on this basis would be a stunning development indeed. As with the Commerce Clause issue, a decision to strike down the Medicaid expansion as unconstitutionally coercive would be recognized instantly as an exercise of political will rather than legal judgment.
Of course, should the Court uphold the ACA, as expected by most lawyers, that should not distract anyone from the damage it is doing in other ways, from the constitutional glorification of corporate political power to the continuing erosion of public health, environmental and workplace standards.
Immigration Law: the Arizona Case: Arizona v. United States addresses Arizona's efforts to develop and enforce an immigration law all its own. The statute in question provides law enforcement officers with the power to arrest someone without a warrant based on probable cause to believe that the person committed a deportable act. It also makes it a criminal offense for an undocumented immigrant to apply for a job without valid immigration papers. This presents a clear case of a law that is preempted by federal laws governing and defining U.S. immigration policy, which is committed by the Naturalization Clause of the Constitution to Congress. This case should offer no dilemma for conservatives on the Court, who almost always side with the Executive branch in preemption controversies relating to national security, police enforcement and immigration law. However, underlying all of the debate is legislation hostile to one of America's most scapegoated populations, the undocumented, and that political reality may change the legal calculus.
Attack on Labor Unions: From the repressive "labor injunctions" of the late-19th and early 20th-centuries to the Supreme Court's decisions undermining the right to organize during the New Deal, periods of judicial reaction have always included judicial assaults on the rights of labor to organize unions and fight for their interests. This period is no different, and the Supreme Court has given itself an opportunity, probably irresistible to the five conservative Justices, to take another whack at labor this Term. The case is Knox v. SEIU. It poses the question whether public sector unions must notify members of the union's political expenditures every time they happen so that employees who pay union agency fees to the union for purposes of collective bargaining only may demand a proportional rebate in advance for political expenditures. Or, alternatively, does it suffice to give an annual budgetary statement with notice of political expenditures and invite the "objectors" to seek a rebate at that point? The case, fairly frivolous on its face, but deadly serious in its political mission and reception on the Roberts Court, is obviously designed to further hobble unions and render them ineffectual political actors. The irony is that, through decisions like Abood v. Detroit Board of Education (1977) and Communication Workers of America v. Beck (1988), the Court has granted muscular rights and powers to dissenting union members that are totally undreamed-of when it comes to dissenting corporate shareholders. Company shareholders who object to corporate political expenditures have no right to a proportional rebate of their corporate shares, much less that they must be told of such corporate treasury political expenditures in advance. While defenders of the Court's decision in the Citizens United case love to observe that the decision opened the floodgates not just on corporate treasury money but on union treasury money too (as if the two were comparable!), they never follow through and make the obvious point that corporate shareholders should, therefore, enjoy the same rebate rights against "compelled speech" as union members presently enjoy. In any event, the war on unions continues and accelerates, with the Supreme Court poised again to undercut the political effectiveness of public sector labor unions, the last meaningful bulwark of labor solidarity in America.
The Surprising Early Return of College Affirmative Action to the Court: In Fisher v. University of Texas at Austin, the Supreme Court has, surprisingly, decided to review its holding in Grutter v. Bollinger and explore dismantling what remains of affirmative action in the next Term. The 2003 Grutter decision preserved a soft form of affirmative action at the college and university level for young people who belong to racial and ethnic minority groups, but only for a period that Justice Sandra Day O'Connor suggested would be 25 years. Now, just nine years later, the ruling bloc is ominously poised to wipe out affirmative action entirely, a prospect we must judge a rather likely prospect given the Court's express loathing of progressive race-conscious measures and its brazen disregard for the original meaning of the Fourteenth Amendment, whose framers clearly contemplated such measures. Justices Scalia, Thomas, Alito, and Roberts insist that the Equal Protection Clause compels government to be "color-blind" even if seeks to remedy the effects of historical and continuing racism. This rhetorical gloss is a fundamental distortion of the meaning of the Fourteenth Amendment, whose framers clearly championed race-conscious measures, like the Freedmen's Bureau, to assist the historical victims of racism. The current project of using the Equal Protection Clause against racial and ethnic minorities seeks to deny any relationship between historical and present-day discrimination and continuing inequalities of opportunity.
The Supreme Court is, of course, still a court, no matter how much certain Justices behave like partisans. Yet, the Court's ideological politics are in full swing these days as the 5-4 conservative majority fleshes out one-sided doctrines in areas from corporate political rights to corporate commercial speech rights to affirmative action to Congressional power to union rights. This is a Court that almost always chooses corporate power over democratic politics and popular freedoms. In a Court of logic and precedent, a Court without aversion to the channels of popular democracy, the challenge to Obamacare would be a total non-starter. But here we are again, waiting to see whether the Court will follow the path of justice or the path of power.
Jamin Raskin is an American University Law Professor, Maryland State Senator and People For the American Way Senior Fellow.
PFAW staff and supporters joined the throngs of supporters of the Affordable Care Act outside the Supreme Court today, while the Justices were hearing the second day of arguments on the constitutionality of the law.
Hundreds of activists chanted and carried signs supporting ObamaCare. For so many Americans, the ACA is the difference between receiving potentially lifesaving healthcare services and being denied for a preexisting condition or being financially devastated by an unexpected illness.
The ACA is a practical and constitutional approach to a solving a pressing national problem, and the Supreme Court should uphold the law.
PFAW joined a group of bipartisan organizations and public figures at a rally outside the Securities and Exchange Commission (SEC) in Washington today to demand that the agency use its authority to require publicly-traded corporations to disclose their political spending. Currently, corporations can use their treasuries to spend unlimited amounts to influence our elections – but that money belongs to the corporation’s investors. If you’re one of the millions of Americans with a 401 (k) or similar retirement account, it could be your money being spent for political purposes without your knowledge or approval.
That’s why disclosure is so important. Democracy depends on transparency, and until we can pass a constitutional amendment to undo the harmful effects of Citizens United and related cases that have helped to bring on the current crisis in our elections, a SEC rule requiring corporate disclosure is a powerful start. At the rally, themed “Wake up SEC,” pro-democracy groups made the case that the SEC needs to do its job and protect Americans from the undue influence of wealthy corporations and special interests. The American people are increasingly alarmed by the effects of money in politics, and we need a regulatory agency that is not asleep at the switch.
To make the point, over 75,000 people sent letters to the SEC in support of the proposed rule.
On the second anniversary of the signing of the Affordable Health Care Act, the Supreme Court prepares to hear arguments against its constitutionality, even though legal experts from across the ideological spectrum have concluded the Act is constitutional. Now, Americans who have been helped by the health care reform are speaking out in favor of the law.
The Affordable Health Care Act most effectively addressed three major systemic problems in American healthcare: frequent, unjustified rate hikes, discrimination against Americans suffering from pre-existing conditions, and young Americans losing coverage once they become ineligible for their parents’ insurance plan.
Prior to the Affordable Health Care Act: insured Americans spent around $1,000 caring for uninsured Americans, and paid skyrocketing premiums; insurance companies were allowed to deny coverage to those with pre-existing conditions, including children; young adults, the group most unlikely to have health coverage, was ineligible to stay on their parents’ insurance plan.
And after Obama signed the Affordable Health Care Act? Up to $1.4 million in rebates could be distributed to as many as 9 million Americans, upwards of 17 million children suffering from pre-existing medical conditions could not be denied coverage, and 2.5 million young adults became eligible to remain on their parents’ health care plan until age 26.
By 2014, every American will access health care regardless of their employment status. Fast forward to 2019, and middle-class Americans are expected to save $2,000 dollars based on the Affordable Health Care Act’s provisions. The budget deficit is supposed to decrease by $127 billion between now and 2021…
As long as the Affordable Health Care Act remains law.
If the Supreme Court does not strike down “Obamacare,” small businesses can receive tax credits to insure employees, 45 million women can easily access basic preventative care such as contraception and mammograms, and incentives for annual physician visits increase. And that’s just icing on top of the reform cake.
Or, the Supreme Court could declare the Act unconstitutional (an extremely unlikely, but nonetheless concerning possibility). In Massachusetts, Gale’s son with cystic fibrosis is not necessarily eligible for his parents’ health care plan anymore. Alice from Colorado has to start travelling to Mexico to fill her monthly insulin prescription again. And in Florida, Terry’s daughter might not survive a disease that attacks the arteries branching from her Aorta, so she most likely won’t become an elementary school teacher.
Last weekend, People For the American Way’s Right Wing Watch captured video of prominent Louisiana pastor Dennis Terry introducing Rick Santorum at an event with an incendiary sermon in which he insists that those who don’t believe that America is a Christian nation “get out” of the country.
The video quickly went viral, and Santorum was forced to distance himself slightly from Terry’s remarks, saying “I didn’t clap when he said that.”
As PFAW Senior Fellow Peter Montgomery wrote in a column for the Huffington Post, the incident illuminates the Religious Right worldview that Santorum and supporters like the Family Research Council’s Tony Perkins – himself a parishioner of Terry’s – embrace:
While the media may understandably focus on Santorum's garbled economic message, his Sunday evening appearance is worth a longer look -- for what it tells us about Santorum and the Religious Right movement that is propelling his campaign.
The church at which Santorum appeared is Baton Rouge, La.'s Greenwell Springs Baptist Church, which Family Research Council President Tony Perkins describes as his home church. Perkins, in fact, was introduced at the event as a "dear friend" of Pastor Terry and as a church elder. Perkins, whose FRC has been designated a hate group by the Southern Poverty Law Center for relentlessly promoting false and malicious propaganda about LGBT people, said of Greenwell Springs Baptist, "there is not a better church in the United States of America than right here." So in Perkins's mind, there is no better congregation than the one that applauded wildly at Pastor Terry's "Christian nation" assertions and his seeming suggestion that people who do not worship Jesus Christ should find some other country to live in.
Peter discussed his column and the Religious Right movement behind Santorum’s candidacy in an interview with TruthDig radio in Los Angeles yesterday. You can listen to the interview here.
Proponents of the Supreme Court’s Citizens United ruling have argued that Super PACs help shake up the almost-guaranteed reelection prospects for congressional incumbents, going so far as to cast Super PACS as a way to bring about a new era of good government. But the very nature of the Super PAC – a mechanism that enables wealthy individuals and special interests to secretly funnel money through corporate political donations in support of their favored candidates – practically invites corruption.
From the New York Times:
Incumbents in Congress usually have a huge fund-raising advantage over challengers. Big donors correctly assume they will probably be in office for years, and curry favor with contributions that only wealthy challengers can match. So why not try to neutralize this advantage by spending money on behalf of challengers? …
But the method they are using — a super PAC that can collect and spend unlimited amounts of money — is the opposite of good government, and demonstrates the inherent danger in allowing big money to steer election results. The handful of donors say their motives are pure, but the public has no way of knowing what their long-term goals are, or whether they have personal interests in the races they have chosen.
The electoral advantages incumbents enjoy is indeed a problem, but not one that is caused or solved by Citizens United. Super PAC funds are comprised not by grassroots donations but by large contributions from a few wealthy donors. Using these resources to usher challengers into office perpetuates the fundamentally anti-democratic influence of special interests of money in our elections.
Regardless of whether wealthy special interests seek to reelect reliable incumbents or replace them with sympathetic challengers, the end result is that the most influential voice in our elections is not that of the American people. We need a constitutional amendment to overturn Citizens United in order to level the playing field for everyone – wealthy or otherwise.
The Atlantic’s Andrew Cohen explains why confirming nominees to our federal courts and helping to boost the economy aren’t two separate issues:
It's not complicated. When a federal judgeship goes vacant because of Senate intransigence, where judicial nominees with bipartisan approval are held up for no good reason, it's not typically the criminal cases which get unreasonably delayed. Criminal defendants have a speedy trial right under the Sixth Amendment. There is no such right for civil litigants. This means those litigants have to wait, often for years, for a trial judge to make available a time for the disposition of a dispute. The problem only gets worse, like it is now, when district courts are understaffed and judges are forced to handle more than their expected case load.
And who are civil litigants in our nation's federal courts? They are corporations and small business owners, investors and merchants, employees and employers, people just like you and me. Well, maybe not you and me since I didn't file a lawsuit this past year and you probably didn't either. But a lot of other people sure did. In 2010, according to federal court records, no fewer than 282,896 federal lawsuits were filed in America. In 2011, 289,252 lawsuits were filed, a 2.2 percent increase from the year before. The latest statistics reveal that there are currently 270,839 pending civil cases in our federal courts.
There's more alarming news. As Mike Scarcella reported last week in the National Law Journal, the Administrative Office of the U.S. Courts announced last week that there was "an 11 percent increase in intellectual property cases and a 15 percent increase in consumer credit filings" last year. The total number of pending cases in the federal system, including criminal cases, now is 367,600 and, guess what? Even as the number of federal laws (and federal crimes) increases, Congress plans to cut the budget for the federal judiciary come next January. Fewer judges. A smaller budget. Signposts on the road to third-world justice.
So what happens to many of these cases when our benches remain empty? They languish in limbo and the litigants have to live with the financial uncertainty that pending litigation brings. If you are sued for a million dollars, for example, you might choose not to invest that million dollars in a new store, or in hiring new employees, until the lawsuit is over. And if you are suing for money, you aren't likely to spend it until you get it. What federal trial judges do for these litigants, therefore, isn't just to pick a winner and a loser in a particular. The court system provides the oil that helps run the machinery of commerce.
The Leadership Conference on Civil and Human Rights organized a call yesterday with Sen. Chris Coons of Delaware and attorneys from Ohio, South Carolina and Arizona to discuss how judicial nominations gridlock in Washington hurts Americans seeking justice around the country.
On Wednesday, Senate Majority Leader Harry Reid reached a deal with Republicans to allow votes on 14 of 22 stalled judicial nominees. The first two of those were confirmed yesterday with overwhelming bipartisan votes.
The deal, while it represents more progress than Senate Republicans were previously willing to allow, still leaves eight nominees without even a vote from the Senate until May at least. Three of these nominees are from Ohio, Arizona and South Carolina.
This procedural gridlock is often portrayed as an inside-the-beltway issue. However, it has a real impact on American seeking justice from our federal courts.
Greg Kuykendall, a Tucson attorney who joined the call, told of a client who had to wait 14 months in jail before a District Court judge with an unmanageable caseload was finally able to review his claim that he was being detained in violation of his constitutional rights. “It effectively made the prisoner spend an additional 14 months in unconstitutional confinement, as a result of the judicial emergency,” Kuykendall said.
Cleveland attorney Michael Meuti told of a Ohio business that had to wait 14 months for a federal judge to review charges that had been brought against it. In the meantime, the business had to endure the uncertainty and cost of having a lawsuit hanging over it.
“Understaffed courts struggle to provide efficient and effective justice,” Meuti said. “When judicial vacancies increase, so do the workloads of each sitting judge. In turn, both individuals and businesses must wait longer for their cases to be resolved and must endure the uncertainties and costs of litigation for a greater period of time. President Obama’s nominees have waited four times longer than his predecessor’s. It is time for the Senate to abandon its obstructionist agenda, which can serve only to make justice harder to obtain for everyday Americans and American companies.”
Armand Derfner, a Charleston, South Carolina attorney, added, “"These nominees are being obstructed for no good reason. They’re suitable, qualified, and many have bipartisan support. The Senate should stop delaying votes to fill these vacancies.”
Later this month, the Supreme Court will hear arguments in one of the most closely-watched cases in its history: the challenge to the 2010 Affordable Care Act. But in the weeks leading up to those arguments, another fight will be taking place in the U.S. Senate on an issue that in many ways parallels the health care debate, and offers an even clearer view of what have become the policy priorities of the Republican Party.
Since Obama became president, Republicans in Congress have made a clear and conscious choice to kill any attempts to cooperate with him to create solutions for the American people. They have chosen instead to devote themselves to be the party of opposing President Obama - on every issue, big and small. In doing so, they have thrown out not only the trust of the people who elected them, but many of their own formerly held principles.
Even ideas that originally came from Republicans, once adopted by the president become grounds for all-out partisan attacks. One such Republican idea was the individual mandate, which is now at the center of the legal and political challenges to the Affordable Care Act.
Ironically, the judicial branch - to which Republicans are turning with hopes that the policy they came up with is declared unconstitutional - is also at the heart of another stunning turnaround. Republicans used to talk about the importance of bipartisan cooperation in ensuring a fair and functioning judiciary. But that changed abruptly in January 2009, when the political party of the president changed.
When it comes to health care reform, Republicans have chosen to ignore their previous positions in an effort to stick it to the president.
When it comes to the functioning of the federal courts, they have so far chosen to do the same.
This week, Republicans in the Senate, after three years of obstructing nominees to the U.S. courts -- contributing to a historic vacancy crisis that affects over 160 million Americans -- will have to make the same choice. Senate Majority Leader Harry Reid has announced he will file petitions to end the filibusters of 17 nominees to district courts around the country, most long-stalled and unopposed. These, plus the two Obama nominees who have already been filibustered, represent nearly ten times the number of district court nominees who were filibustered under the last two presidents combined. The cumbersome process to end these filibusters will, if Republicans don't relent, tie up the Senate through early April.
During George W. Bush's presidency, Senate Republicans were near-universal in their condemnation of the filibusters of some of Bush's most extreme judicial nominees. Many went so far as to claim that filibustering judicial nominees was unconstitutional.
Once President Obama moved into the White House, it was remarkable how fast they changed their tune. They went overnight from decrying judicial filibusters, to using them wantonly -- not just to stall nominees to whom they found objections, but to stall all nominees , even those whom they favor. At this point in Bush's presidency, the average district court nominee waited 22 days between approval from the Senate Judiciary Committee and a vote from the full Senate. Under President Obama, the average wait has been more than four times longer - over three months.
This is gridlock for gridlock's sake: once Republicans allow them to come to a vote, the vast majority of the president's nominees have been confirmed with overwhelming bipartisan support, demonstrating that the opposition to these nominees was never about their qualifications.
This is more than an inside the beltway partisan game -- it has helped to create a historic vacancy crisis in the federal courts. Approximately one in ten federal courtrooms today sits empty because of Senate inaction. These vacancies create unmanageable workloads for sitting judges, which in turn cause unacceptable delays for Americans seeking their day in court. The Republican Party has been so intent on obstructing President Obama's agenda that they've been willing to sacrifice the smooth functioning of America's courts
. The health care debate highlights the importance of appointing judges who place their duty to the Constitution over a partisan agenda. But it also crystallizes the agenda of opposition that has caused the Republican Party to go off the deep end. When a party's only principle is to be opposed to the other party's agenda, it's the American people who end up paying the price.