In a recent issue of the New Yorker, I came across a cartoon. It showed the Supreme Court building in Washington, unmistakable for its gigantic pillars. But instead of the words “EQUAL JUSTICE UNDER LAW,” on its faÃ§ade, the inscription read, “JUST ANOTHER BUILDING.”
I laughed and laughed when I saw it. But before I had time to wipe off my tears, I began to feel incredibly sad. For, like all good humor, the cartoon had hit upon something incredibly true and tragic, that the U.S. Supreme Court has all but lost its stature.
Justice Roberts’ recent public comment that the President’s State of the Union was nothing but a pep rally does not bode well for the future of the court. That incident signaled the Court’s definite shift from a body that determines issues of constitutional law to a body that actively carries out the mission of the political group it is most aligned with.
How did we get here? What was the turning point?
Even the scholars cannot say.
Justices like Thurgood Marshall and William Brandeis fought for social justice, interpreting the constitution in the context of the dynamic and changing nation they lived in, as well as in light of the deeper principles of liberty and equality embedded in the constitution.
Justices like Clarence Thomas and Antonin Scalia, on the other hand, are strict constructionists or originalists, concerned only with what the founding fathers, 13 white men in 1787, thought about social issues.
No wonder we have a problem.
During his nomination hearings, Chief Justice Roberts was hailed by liberals and conservatives alike as a fine candidate in spite of his well known opposition to affirmative action and other professed liberal ideas.
The result today is an activist court that does not simply interpret the constitution to decide issues brought before it but aggressively promotes the conservative agenda.
The most visible turning point for the court came in 2000, when it prematurely decided the presidential election in favor of a candidate who had gotten a minority of votes.
For a while the court’s leanings remained unclear, until the recent Citizen United versus the Federal Election Commission decision. When the court tookthe case up in its new term, Justice Roberts actively expanded its scope from the narrow question of whether Hillary the Movie, a slanderous vehicle sponsored by the right wing, should be released, to the broader issue of whether corporations had free speech rights similar to individuals. Then, ignoring one hundred years of precedent-setting case history, and setting aside the inconvenient fact that the constitution never intended such a right to be granted to profit-making corporations, the court issued an abominal ruling saying that corporations were protected by the first amendment.
What was curious about the opinion was the way in which Roberts and the conservative justices went contrary to the court’s normal tendency to stick to narrow interpretations of the law.
Then came Barack Obama’s comments during the State of the Union speech, castigating the court for the damage it had caused to a century of constitution law in opening the floodgates for special interests to bankroll our elections. When you pause to think that not only had the activist justices undone our constitution, but also destroyed decades of efforts to reform campaign finance, you realize that Obama had understated the case.
Conservatives, in the meantime, have gotten the message. They are already drafting petitions challenging the Health Reform Bill even before its ink has dried, confident that they have a powerful ally in the Supreme Court.
And frankly, I am worried. If the Supreme Court rules against the Patient Protection and Affordable Care Act, in spite of decades of precedent saying that Congress can mandate states to implement exactly the kinds of reforms that the new law is supposed to enact, the conservative states will simply begin to ignore Congress.
Who will govern our country then?
Alas, the one judge that Obama is likely to replace in the near future happens to be Justice John Paul Stevens, who has decried the court’s bad decisions in his feisty dissenting opinions, defending the broader principles of civil liberty, equality, anti-trust, and social justice.
The other judge likely to retire is Ruth Bader Ginsberg, also a liberal.
What then is the future of our constitution? Not very bright, I am afraid, if we are going to trust it to the Supreme Court.
Perhaps Congress will be able to undo the court’s bad decisions through legislation. That is if Congress can actually pass any legislation at all. The Health Bill will be the litmus test in answering that question. With Republicans determined to do nothing except win elections, that seems to be a long shot.
So perhaps the best thing we can hope for is that the Supreme Court one day will resemble that New Yorker drawing. That it will lose its prestige and clout and will simply be ignored.
That is if the Republicans are done using it to gerrymander any policy they want.
What then can we the citizens do?
I think we need to take a page out of the Tea Party activists’ playbook. We need to organize marches against the Supreme Court. We need to show that we are angry too; we are angry that our liberties and rights are being sacrificed at the altar of corporate profits.
The alternative is watching our country disintegrate.