The Supreme Court has suddenly become hyperactive even as political action by President Obama and Congress has fizzled out almost entirely.
But, while the first and second branches of the federal government have fallen into quiescence, it’s springtime at the third branch and its justices are delivering decisions on big, controversial issues such as campaign finance and affirmative action. By the end of June, the justices will rule on the constitutionality of Obama- Care’s birth-control mandate.
This spate comes on top of other landmark decisions during the Obama presidency — striking-down the Defense of Marriage Act (DOMA), demolishing restrictions on corporate and union campaign donations in the Citizens United case, and green-lighting ObamaCare itself in 2012.
The court’s willingness to tackle such cases guarantees flak from politicians who dislike its conclusions. But reactions have been particularly harsh lately, leaving some observers worried that the court’s authority is being eroded.
Democratic Sens. Patrick Leahy (Vt.) and Charles Schumer (N.Y.) will hold hearings into the court’s recent McCutcheon decision, which removed aggregate limits for individual campaign donations.
Schumer said the justices want to “dismantle all limits on giving ... until we are back to the days of robber barons.” Sen. Bernie Sanders (I-Vt.) accused the court of “paving the way toward an oligarchic form of society.”
The hot rhetoric, discounting the possibility that the justices are deciding cases according to their sincere reading of the Constitution, is not confined to the left. Rep. Michele Bachmann (R-Minn.) responded to the 2012 ruling upholding ObamaCare by declaring “this court has forced us now to pay for their utopian dreams.” The Tea Party congresswoman remarked on the 2013 DOMA decision that the justices “though they may think so, have not risen to the level of God.”
Partisan critics are stuck in a contradictory pattern. They demand that the court remain above the fray, but nevertheless exert massive political pressure on it. Whether they’re making erudite speeches or waving placards and shouting slogans, they’re still essentially demanding that the justices pay attention to them and not solely to the Constitution.
Obama’s critics say his administration has taken this approach to new levels. In his second State of the Union address, in 2010, the president criticized the Citizens United decision emphatically, saying it would “open the floodgates for special interests.” Associate Justice Samuel Alito, sitting just yards away in the well of the House, shook his head and and mouthed the words “not true.” In April 2012, after oral arguments over the Affordable Care Act, Obama said he was confident the court would “not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected Congress.”
Even those sympathetic to Obama say the president, who served as head of the Harvard Law Review, was lobbying the justices and was wrong to do so.
“I’m an Obama fan, but he knows better than that,” said Vin Bonventre, an Albany Law School professor who writes extensively about the court. “That’s absurd. Their foremost function is to review what other branches [of government] have done and make sure it does not offend the Constitution.”
During the same period, Leahy made a 2,000-word speech from the Senate floor, concluding with an assertion that he hoped and had “faith” that “the Supreme Court will not overstep the judiciary’s role” in the Affordable Care Act case. Republicans accused the Democrats of trying to “work the refs.”
Just last week, Attorney General Eric Holder publicly praised Justice Sonia Sotomayor’s dissenting opinion in the recent affirmative action case as “courageous and very personal.”
Some experts say such interventions are not as unusual as conservative critics suggest, and do not necessarily erode the court’s standing.
Brian Landsberg, a professor at the University of the Pacific’s McGeorge School of Law, recalled a 1985 speech by Edwin Meese, who was serving as President Reagan’s attorney general.
In a clear reference to the Roe v. Wade decision setting a right to abortions, Meese jabbed at justices who saw “ ‘penumbras’ somehow emanating ghostlike for various provisions — identified and not identified — in the Bill of Rights.” This, he complained, “was not constitutional law in any meaningful sense at all.”
Further back, President Nixon made no secret of his dislike of the Supreme Court’s rulings on school busing, and in private he was even more scathing. “Knock off this crap. Do what the law requires and not one bit more,” he told aides.
Liberal activists insist they object to the current court not simply because they disagree with many of its decisions.
“I think the way to look at it is whether the court is following established law or whether the court is going to extreme levels to get the result they want based on their ideology,” said Joshua Field of the liberal Center for American Progress. “Here you have a court willing to disregard precedents to get to the place that it wants.”
Others suggest the problem is not that the court has become politicized, per se. The court is always politicized, they argue, since it is required to rule on many of the most profound and divisive topics in American society. But the predictability of the current court, in which there is in essence a four-person conservative bloc, a four-person liberal bloc and one conservative-leaning swing voter (Justice Anthony Kennedy), may be a problem.
“You look at something like the campaign finance case and it’s like, ‘Oh, come on!’ ” said Bonventre. “We know what way the Republicans are going to vote and we know what way the Democrats are going to vote. It’s not like you are just talking about different approaches to jurisprudence here.”
“It would be great to see decisions that are not so predictable along that 5-4 line, but unfortunately that’s what we’ve been seeing in recent history.” said Nicole Austin-Hillery of the Brennan Center for Justice.
One rare point of broad agreement between liberals, conservatives and the unaligned is that Chief Justice Roberts’ decision to deliver the deciding vote in favor of upholding the Affordable Care Act seemed to be made partly to shield the court from the kind of bitter and all-consuming debate about its role that followed the Bush v. Gore decision that effectively decided the result of the 2000 presidential election.
“He is a very smart justice,” Field said. “He understands the significance of how people view his court.”
There are also those who see the relatively narrow scope of, for example, the affirmative action decision, which did not ban race-based preferences in college admissions but, rather, confirmed states’ right to end them, as motivated by a desire that the court avoid colossally controversial decisions.
But even if there is not another Roe v. Wade or Bush v. Gore decision just around the corner, the court will face fire soon enough. The ObamaCare mandate decision, which is just weeks away, guarantees that, whichever way it goes.