Supreme Courting

Is the Supreme Court courting us? What are we to make of this? Just when we thought the most politicized Supreme Court in modern history was incapable of rendering an impartial decision on anything it ruled that Arizona’s immigration law is unconstitutional and that the Affordable Health Care Act and its individual mandate are constitutional. What is even more remarkable is the fact that it was Chief Justice Roberts who wrote the majority opinion in the health care case. How could this be? Justice Roberts usually pulls matters into the ideological chasm rather than out of it. So why did he do it? People who know him say he was concerned about the court’s reputation and the perception that it has become too political. Frankly, this is a bit like saying that a man who just went on a killing spree also helped an old lady cross the street because he is concerned about the perception that our society has become too violent and uncaring. This is, after all, the Bush v. Gore court. This is the Citizens United court. This is the court that also reaffirmed Citizens United by ruling as unconstitutional the campaign financing laws Montana passed decades ago to combat the corruption that was so rampant before those laws were put in place. This is the same court that said corporations are people with all of the rights of people, whereas Labor unions are not people and do not have the same rights as people or corporations. It does not take much knowledge to realize which interests and which political party this court favors.

Anyone who thinks that ideological and political considerations will not continue to drive this court is being far too optimistic. Justice Scalia demonstrated that all too well. His comments regarding the federal government’s authority over immigration and Arizona’s outrageous immigration laws ignored and misstated many of the facts, and he launched a very partisan attack on President Obama. Such bombastic and partisan statements have traditionally been considered beneath the dignity of the court, but that is of little concern to Justice Scalia. Unfortunately the petulant statements he is so prone to making often seem to reflect what the other three “conservative” justices are actually thinking. In almost every instance Chief Justice Roberts has voted with the other three Republican appointed Justices. What probably made the Affordable Health Care Case different for Justice Roberts is the fact that it did not decide an election, restrict the rights of corporations, or restrict the use of money to influence elections or government policies. In other words, it did not decrease the rule of money!

The politicization of this court is particularly egregious because the apparent conflicts of interest make so many of its decisions suspect. For instance, the two justices, Scalia and Thomas, who should have recused themselves from the Affordable Health Care Case actually voted in a manner favorable to the interests that should have caused them to recuse themselves. Furthermore, a very brief search on the inter net will reveal many more examples of when Justice Scalia and particularly Justice Thomas ignored the rule of avoiding even the appearance of bias and refused to recuse themselves from cases in which it appeared they had conflicts of interest. If Chief Justice Roberts is really concerned about the reputation of the Supreme Court he should speak out against the frequent violations of this very fundamental rule of judicial ethics and he should call out the Justices are committing such violations. No court that tolerates the violation of judicial standards and the rules of judicial ethics can or should command the respect of the citizens of this nation of laws. In an earlier post I said the Health Care Case should be considered the last straw, and Justice Thomas should be impeached if he does not recuse himself from that case. He did not recuse himself, and I stand by my statement. Justice Scalia’s behavior is as odious and damaging to the court’s reputation as is the behavior of Justice Thomas, but the case that be made against Justice Scalia for impeachable offences is not as strong as the case that can be made against Justice Thomas. To they who fear the precedent of impeaching a Supreme Court Justice I say we had better fear the decisions of unethical justices who are allowed to stay on the court for life.