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.