President Obama and Democrats are just getting started on the argument that the Supreme Court is under control of a bunch of right-wing bullies.
Here are four high-profile, highly political cases with clear potential to advance the Democrats’ case by undermining the Supreme Court’s standing as an impartial, independent branch of government.
At stake is the survival of President Obama’s healthcare reform act, specifically the individual mandate to purchase health insurance. Even staunchly conservative legal minds like Circuit Court Judges Jeffrey Sutton and Laurence Silberman have said the law is well within previous rulings of the court and defeating it amounts to judicial overreach. And, as the polls show, it is not just a few conservative judges who feel that way.
2) Affirmative Action:
The Court will also hear a case regarding the use of race in the admissions process at the University of Texas. In a 2003 decision involving the University of Michigan Law School, the Court held use of race as one factor among many in considering an applicant did not violate the 14th amendment. By even agreeing to hear the Texas case, the Court has signaled a willingness to reconsider its previous decision. A reversal, coming so quickly, will be a break from the belief that judges should respect precedent -- which the conservative justices all claimed to support in their confirmation hearings.
In 2010, Arizona’s immigration law gave the police broad new powers to detain anyone suspected of being in the country illegally. A federal judge blocked the law and the Court will hear Arizona’s appeal this session. If the conservative majority overturns the previous ruling, the controversial law will be allowed to stand. This would give other states license to adopt similar politically controversial anti-immigration laws.
4) Voting Rights:
The court will decide if the Justice Department can use the 1965 Voting Rights Act as the basis for review of election laws in 16 mostly southern states. These states have a history of racial discrimination and disenfranchisement of minorities. DOJ has used its power under the Voting Rights Act to block new voter identification laws in South Carolina and Texas’s new proposed redistricting map. Conservatives have never liked the power given to the federal government under the Voting Rights Act.
This case is extremely explosive at a time when the GOP is aggressively pushing voter identification laws that will depress the turnout of liberal-leaning young and minority voters -- likely voters for Democrats.
According to polls, the overall level of public respect for the court is fading fast as it becomes just another venue for the polarized tug of war between liberals and conservatives. A January 2012 poll from the Kaiser Family Foundation found that 75 percent of Americans believe Supreme Court justices let their own ideological views influence their decisions while only 17 percent think the justices decide cases based on legal analysis. The Gallup poll finds that public trust in the high court has declined from 50 percent 10 years ago to 37 percent today.
Starting with its unprecedented decision in Bush v. Gore -- where the Court effectively decided a presidential election in favor of Republican George W. Bush -- and followed by the Citizens United case opening the door to big money dominating campaigns, the Court is increasingly seen as just another manifestation of the right-left polarization that characterizes American politics in the 21st century. The image of the justices rising above politics is close to a historical artifact.
The reason is clear: The frequency of 5-4 decisions on hot-button political issues in recent years has caused many people to believe that justice is not blind to politics or the influence of money. That includes last week’s decision to allow Americans to be strip-searched after being taken into custody for even a minor crime.
When the Court decided Brown vs. Board of Education in 1954, Chief Justice Earl Warren made sure that the decision was unanimous. Segregation of public schools was such an extraordinary case that Warren knew that many Americans, especially in the South, would question the Court’s ruling if the decision split even 8-1.
For Warren, preserving respect for the institution was more important than the short-term ideological divides of the day. He even sent a draft of his opinion to the hospital bedside of Justice Robert Jackson to win his support.
Warren’s example is worth keeping in mind for Chief Justice Roberts as the court decides the current series of highly political cases this year. A series of 5-4 decisions on contentious political issues that are normally decided by legislatures could do irreparable harm to the Court’s already troubled reputation.