Immigration and Citizenship

Supreme Court the US Right on the Hill

Nick O’Malley

Once it was the conservatives who accused the US courts of activism, of making law from the bench by striking down those created by Congress. Now it is the cry of liberals, who see the social architecture created by progressive governments over generations under threat.


Since 2000, the court has cleared the way for a Republican president to take office, scrapped campaign finance regulations and wound back affirmative action laws. In hearings into the Obama administration’s healthcare reforms last month, the court appeared downright antagonistic to the government’s counsel.


On Wednesday, even the moderate minority of the nine-member court appeared to be sceptical of the federal government’s attempt to repeal controversial anti-immigration laws introduced by the state of Arizona. According to one lawyer who appears often before the court, not only is the right wing of the bench more determinedly conservative, so are even those appointed by Democratic presidents.

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Tom Goldstein was second chair in the case that most shocked liberal Americans, Bush v Gore, which nearly 12 years ago ended the recount of the contested ballot in Florida and installed George W. Bush as president. The decision was split five to four along party lines.


The unsigned opinion held that the decision would be “limited to the present circumstances”.


Having installed the president, the court in effect abandoned its decision.


“For liberals in America it was the decision that caused them to have no doubt the court’s conservative majority was on an ideological campaign,” says Goldstein.


“The overwhelming majority of those who think and write about American constitutional law think that it was incorrect.”


But Goldstein’s criticism of the court is more nuanced than that of most on the left. He believes the court is ideologically conservative, but not partisan.


“I don’t think it was part of an effort by the court’s conservative majority to install a Republican president.”


But a series of studies employing various methodologies appears to show that the court has veered further to the right and become more activist since. Among the most notable is the Martin Quinn Scores analysis, named for the academics who invented it, which counted cases in which conservative justices had struck down laws up until 2010, and found that the court was at its most conservative since the 1950s.


In 2010, also by a five-four conservative-liberal split, the court made another controversial ruling, in a case known as Citizens United. A non-profit group with conservative links, Citizens United wanted to pay to air a documentary critical of Hillary Clinton, breaking laws on paid electioneering within 60 days of an election. The court struck down the bipartisan electioneering law, citing the first amendment right to freedom of speech.


In effect the court granted corporations similar rights to those enjoyed by individuals, and equated spending money on advertising with freedom of speech. And since corporations are not subject to the campaign donation restrictions that bind politicians and parties, the amount they can raise — and from anonymous sources — has become limitless.


Goldstein fought on the losing side of that case too. “Liberals will say [granting freedom of speech to companies] is absolutely bizarre, conservatives will say it is perfectly normal. There is no right or wrong answer to that question,” he says today. “But there is no question that it has an impact on the functioning of democracy, and you could argue it either way. You could say more speech, more ads, more ideas expressed is good, or you could say it’s incredibly distortive, that it allows people or companies with huge amounts of money to effectively buy elections.”


This is what concerns the left. Clearly big business has the cash and the incentive to back conservative governments seeking to cut taxes and slash regulation.


The so-called Super PACs (political action committees) dominating this campaign are the direct result of the Citizens United decision. Once the court established that corporations could air political advertisements during election campaigns, PACs were formed in support of candidates.


The Republican primary race just finished was longer and bloodier than previous contests because of the sea of cash spent in advertising. The general election will be a bloodbath.


The other effect of Citizens United has been to constantly remind the public of the influence of the court, because political ads are now omnipresent.


“Public frustration with campaign spending is likely to peak in the fall [autumn] with the torrent of ads and the inability to tell who is behind them,” says Goldstein.


But it is the pending decisions on the Affordable Care Act that could signal even greater changes to American society, says Doug Kendall, director of the Constitutional Accountability Centre.

The states challenged what became known as Obamacare, arguing that the federal government had no constitutional right to rule on commerce between the states or to force individuals to buy a product they might not want — health insurance.


Should the court make a sweeping ruling against the government, says Kendall, the “hallmarks of the 20th century”, including the social security system, would be under threat. “We would be in a dramatic new age where the Supreme Court has decided that the federal government can no longer act to solve national problems.”


Neither Kendall nor Goldstein, who has argued 25 cases before the court, care to predict the outcome, but Goldstein says the tenor of comments from the bench in the Arizona case this week are instructive.


In this case, the federal government was seeking to overturn an Arizona law directing its police officers to stop and check people who might be illegal immigrants. The federal government argued immigration was its turf. The court did not seem to buy it.


“The state has no power to close its borders to people who have no right to be there?” asked Justice Antonin Scalia at one point.

And later: “Are you objecting to harassing the people who have no business being here? Surely you’re not concerned about harassing them.”


Washington Post columnist Dana Milbank noted that Justice Scalia’s line was nearly identical to that of the Tea Party protesters chanting on the court’s stairs throughout the hearing.


What shocked Goldstein was not the aggression — he is used to that — but how tepid was the response of the Democrat appointees.

“It showed that the notion that there is a true left of the Supreme Court, a liberal wing, is wrong,” he says. “It is not just that the right side of the court has moved further to the right, the entire court has moved to the right.”


Goldstein, however, is not sure that the court is any more conservative today than it was liberal in the 1970s. Back then the court, under Chief Justice Warren, discovered a right to privacy lurking in the “penumbra” of a handful of amendments of the bill of rights, and created legal abortion in America in Roe v Wade.

This outraged and energised the right – both Christian conservatives and small-government libertarians. “Conservatives in the wake of Roe and the Warren court have made it a priority. They realised the true power of the court.”


Republicans have also been far more energetic than Democrats in fighting judicial appointments from Congress. At this point in the presidency of George W. Bush, the average district court nominee waited 22 days between approval from the Senate Judiciary Committee and a vote from the full Senate. Now the average wait is more than three months.

It is still unclear what the long-term impact of the so-called culture war will be on the bench. What is clear is that Americans will live with it for a long time.

“When the constitution was written and provided for lifetime appointments, no one thought that meant until you were 90,” says Goldstein. “No one lived until they were 90. A Supreme Court appointment can be the most lasting legacy of a presidency.”

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