Ponder this: if we accidentally elect Newt Gingrich president will he
have Justices Roberts, Alioto, Thomas and Scalia arrested and brought before him
in him in handcuffs for the crime of being judicial "activists?"
Three Supreme Court Cases That Should Worry You
Posted on Dec 18, 2011
 |
| AP
/ J. Scott Applewhite |
Justices Alito, left, and Roberts pose in front of
the Supreme Court of the United States. The
two men have helped engineer radical legal change in America.
|
At his 2005 Senate confirmation hearing, John
Roberts, the nominee of President George W. Bush to become the 17th chief
justice of the United States, promised to serve in the neutral fashion of a
baseball umpire and lead the Supreme Court away from all manner of judicial
activism. “[I]t’s my job to call balls and strikes,” he testified, “and not to
pitch or bat.”
Few, if any, observers took Roberts at his word,
given his track record as a Republican warhorse, including stints as a clerk to
Chief Justice William Rehnquist and as deputy solicitor general under the first
President Bush. But even the skeptics were not
prepared for the judicial counterrevolution that Roberts and his conservative
high court brethren have engineered since.
In the space of a few short years, the Roberts court has transformed American law with its
miscarriages of justice. Among its dubious lowlights, the court has invented [italics and bold-face
added] a Second Amendment individual right to bear arms, erected new
barriers to age and sex discrimination lawsuits, undercut environmental
protection, and, in the Citizens United case—its crowning glory to date—it has
recognized corporations as people under the First Amendment with the
constitutional right to spend without restraint on political attack
ads.
Anyone hoping the pace of the counterrevolution
might slow is apt to be disappointed by the time the court completes its current
term. If present
trends persist, and there is little reason to believe they won’t, 2012 will be
remembered as the year the court rewrote the constitutional boundaries between
federal and state authority, severely curtailing federal initiatives on
behalf of working people, minorities and the poor.
Here are the three pending cases that best define
the agenda:
When the 2010 census revealed that the population of
Texas had grown by 4.2 million, the state’s Legislature was required to redraw
congressional voting districts to comply with the one-person, one-vote standards
of the Voting Rights Act of 1965. But in a classic “oops” moment, the
Legislature and Republican Gov. Rick Perry remapped the playing field in a way
that minimized the electoral clout of the 2.8 million Hispanics who had migrated
to the Lone Star State in the previous decade.
Texas, like most southern states and counties with a
history of using poll taxes and literacy tests to stifle minority voting, is
required under the Voting Rights Act to obtain “pre-clearance” from the Justice
Department or a three-judge court in Washington, D.C., before changes to
electoral maps can take effect. The Perry plan was so outrageous that even
before the review process was completed, civil rights groups persuaded a
three-judge federal panel in San Antonio to scuttle the Republican remap and
craft a redistricting plan fashioned by the judges.
With Texas gaining four new House seats in the 2012
elections, the Roberts court is poised to hand Perry an undeserved legal victory
that could ensure continued Republican dominance of the lower chamber. A
pro-Perry ruling could also deal a death blow to the pre-clearance mandate in
general, after a 2009 decision, also from Texas, which eased the ability of
municipalities to claim exemptions from the mandate (Northwest Austin Municipal
Utility Dist. v. Holder).
Oral argument has been set for Jan. 9, and a
decision is expected in time for the March Texas primary.
The Arizona Immigration Law: Arizona v. United
States
Enacted in 2010, Arizona’s SB 1070 is the love child
of former state senator and rabid immigrant-rights basher Russell Pearce and
Gov. Jan Brewer. Among its several provisions, the statute requires state law
enforcement officers to ascertain the immigration status of anyone they stop if
they have reason to believe the detainee might be an undocumented immigrant. The
statute also makes it a crime under state law for undocumented workers to seek
employment if they are not registered and authorized to work by the federal
government.
In April, the 9th Circuit Court of Appeals enjoined
the act’s offending provisions, holding that under the Supremacy Clause of the
U.S. Constitution, Arizona’s attempt to criminalize aspects of immigration were
“pre-empted” by federal immigration law. The pre-emption doctrine is the
long-standing principle that only Congress and the federal government have the
authority to exercise certain powers, such as the right to declare war, make
foreign policy or print money.
In 1956, in a case with haunting similarities to the
Arizona challenge and that ought to be controlling precedent, the Supreme Court
cited the pre-emption doctrine to strike down a Pennsylvania law that had made
it a state crime to advocate overthrow of the federal government (Pennsylvania
v. Nelson). But in May, in yet another signal that the Roberts court is intent
on altering the federal-state balance, the Supreme Court brushed aside
pre-emption concerns to uphold an Arizona law authorizing the state to revoke
the licenses of employers who knowingly hire the undocumented (Chamber of
Commerce v. Whiting).
Oral argument on the fate of SB 1070 has yet to be
set. In the meantime, Justice Elena Kagan has recused herself from deliberations
because of her prior involvement in the issue as solicitor general.
Copycat legislation mirroring Arizona’s has spread
to South Carolina, Utah, Georgia and Alabama, whose new immigration law has been
blasted in a recent Human Rights Watch report as “grounded in discrimination”
and fostering “a culture of fear.”
The court’s decision on SB 1070 will likely
determine the fate of these other laws as well, accelerating the transfer of
powers long held by the federal government to individual states determined to
scapegoat the undocumented.
Obamacare: Florida v. U.S. Department of Health
and Human Services
Baseball has its World Series, football its Super
Bowl. The concerted legal attack on the Patient Protection and Affordable Care
Act of 2010 is the dream moment the Roberts court has been longing for.
The immediate legal issue before the court is
vitally important and by now well known: whether Congress has the constitutional
power to require virtually all adult U.S. citizens and legal residents to buy
health insurance or pay a penalty. But as critical as health insurance is in the
everyday lives of all people, there is an underlying legal issue the case raises
that is even more critical: whether Congress and the president in enacting
national health care legislation have overstepped their authority under Article
1, Section 8, Clause 3 of the U.S. Constitution, otherwise known as “the
Commerce Clause,” which grants Congress the power to regulate “Commerce with
foreign Nations, and among the several States. …”
Although it lacks the fanfare of the First Amendment
and concepts like due process and equal protection, the Commerce Clause has been
the basis for a vast panoply of progressive federal legislation, ranging from
the National Labor Relations and Fair Labor Standards acts of the 1930s to the
Civil Rights Act of 1964 as well as Occupational Health and Safety, Equal Pay
and Clean Air and Water acts of more recent vintage.
It took FDR’s threat
to expand the Supreme Court from nine to 11 members to move the court to
reconsider its once highly restrictive interpretation of the Commerce Clause
that threatened to derail the New Deal. And it was not until the 1990s and 2000s
that the judicial pendulum began to reverse course, as the court under Rehnquist
inaugurated what some on the right have touted as an era of New Federalism, with
decisions curbing federal regulation of education and invalidating portions of
the Violence Against Women Act.
Since the federal circuit courts are split on the
constitutionality of Obamacare, it’s understandable that the Supreme Court would
step in to provide clarity. But here, as elsewhere, the trend is ominous. The
challenge to Obamacare affords the Roberts court the opportunity to finish the
job of New Federalism, and the implications for the country’s future could not
be more profound. Would the demise of Obamacare have a legal domino effect,
leading piece by piece, case by case, to future efforts to eviscerate Medicare,
environmental protection and even Social Security? Oral arguments are expected
late in the court’s term.
In Federalist Paper No. 78, Alexander Hamilton
supported the creation of an independent court system, terming the judiciary the
“least dangerous” branch of government because it lacked the capacity to “annoy
or injure” what he called “the political rights of the Constitution.” But as the three cases
topping its 2012 docket suggest, the Roberts court is moving to consolidate
nothing less than a judicial counterrevolution.
Thanks to David Allen Tree for this post.
editor's note:
definition: Judicial Activism: a decision that you do not agree with.
| 
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