Attacks from the Right mount over “liberal” rulings. But first: Has SCOTUS really tacked to the left?
Last week wasn’t a dream — the Supreme Court handed-down three solid victories for progressive causes: healthcare, marriage equality, and the Fair Housing Act all earned the judicial stamp of approval. Add in this week’s thumbs-up for independent commissions on redistricting, and we’ve got a grand slam for team Democrat.
While conservatives and GOP presidential hopefuls bitch and moan about the “new” lefty tilt to the bench, threatening all manner of retribution, Democrats are viewing the recent decisions as some kind of fluke, but are they?
The New York Times Upshot parsed the high court’s data base on rulings from 1946 to 2014, and found that under Roberts the court has demonstrated a nascent pattern of political moderation, in spite of the infamous Citizens United and McCutcheon rulings. Not since 1969 has SCOTUS ventured substantively into liberal territory, albeit not with a Warren Court verve, or anything close to it. The Upshot provided a graphic illustrating that under Roberts the scales of justice have weighed-in on the liberal side four out of ten years, including the past three years — and that’s before the 2015 rulings are factored in.
Predictably, Justice Robert’s position in support of the Affordable Care Act drew fire from the Wall Street Journal with the assertion that the Chief Justice is “revealed as a most political Justice.” Conversely, he earned some carefully qualified praise from Ruth Marcus at the Washington Post, who described his vote on the ACA thusly:
“This is not judicial activism, rewriting legislation from the bench. It’s judicial deference with a brain.
Does anyone think that John Roberts, citizen, or John Roberts, member of Congress, would vote for the Affordable Care Act? Or President Obama? Of course not. The health-care ruling helps — or should help — undermine the cynical view that all judges are mere partisans in robes, reflexively ruling for their team.”
If we’ve learned nothing else these past few days, we should take home the notion that the judiciary’s role remains unique from that of the legislative and executive bodies — their independence is part and parcel of their effectiveness as a democratic creature. Yet some conservatives are openly calling for extraconstitutional punitive measures in the wake of rulings they simply do not like.
Legislative threats to an impartial judiciary
There have been rumblings from the fringes on the far right for high court impeachment after last week’s judicial assault on their retrograde “values.” Although, court watchers note that this bench has also handed conservatives a spate of prize rulings, especially in the early years. The Upshot reminds readers:
The most conservative term since before the Warren court era was the fourth one of the court led by Chief Justice Roberts, in 2008, and the first term of the Roberts court was close behind. Conservatives certainly have many reasons to be happy with the Supreme Court’s recent work. On campaign finance, gun rights, race and abortion, the justices have delivered strongly conservative rulings.
If states are the laboratories of democracy, then we can expect a troubling swell of political attacks on our Federal Court system. Democracy Tree has reported about various state-level legislative attempts to hamstring their judicial branches in recent years, often over the marriage equality issue, and now we hear calls for similar punishments over the Supreme Court’s definitive ruling on the topic.
Some weeks prior to Thursday’s hallmark decision, Jamie Barnett and Liz Seaton, board members of the watchdog organization Justice at Stake, identified a trend in state legislatures articulated in their article in Governing about the legislative “War on Our Courts” over marriage equality. The attorneys describe the national crisis:
The reality in many states is now this: Legislators are pushing bills to intimidate, punish or fire public employees, including judges, who recognize or grant marriage licenses to same-sex couples. This follows threats by legislators to impeach judges over single rulings they disagree with. In the wake of judges overturning state bans on marriage for same-sex couples, these impeachment calls have multiplied.
Two years ago, the Iowa legislature attempted to cut the pay of their state supreme court justices by 85 percent after the high court overturned their ban on same-sex unions. Republicans additionally tried to impeach the justices. They subsequently ousted two justices through a richly bankrolled smear campaign.
The U. S. Constitution is clear on the impeachment issue — strictly limiting its application to “high crimes and misdemeanors.” A ruling, one way or another, on any issue is the courts’ constitutionally protected prerogative, not a criminal act. Barnett and Seaton warn:
If one judge were impeached over a decision, who honestly thinks that would be the end? In a hyperpartisan political climate, impeachment hearings could become all too common. No credible system of justice could survive such a political wrecking ball.
Before the ink was dry on the ACA ruling last week, the conservative group Freedom Watch issued a fatwā on the Supreme Court calling for the impeachment of the six Justices who upheld the federal healthcare exchange program. Larry Klayman, leader of the conservative group told McClatchy Newspapers:
“The six U.S. Supreme Court justices who voted to uphold ObamaCare should be impeached for abandoning the rule of law.
These six Justices have violated their own long-established rules of interpretation for applying statutes to instead advance their own political objectives or burnish their public persona. Such personal goals corrode the role of the Court. The justices abandoned the rule of law and have become merely a political focus group.”
A writer on the ultra-conservative website Western Journalism echoed the call for impeachment, but based it on the marriage equality ruling:
“So here’s the challenge, for ‘We the People’ to stand up against tyranny. It’s not free speech. It’s not love. It’s not tolerance. It’s tyranny. And no matter what the Supreme Court calls it, it’s not marriage. Congress now must muster the courage to impeach those Supreme Court justices, just as Associate Justice Samuel Chase was impeached in 1805.”
GOP presidential contender Ted Cruz blogged in the Washington Post calling the Justices “black-robed Houdinis”, but held back on calling for impeachment in a National Review op-ed — not because it’s a bad idea in his estimation, but because he believes the Senate couldn’t muster the votes. While Mike Huckabee, also vying for a 1600 address, was prompted to opine in USA Today that “We can’t bow to judicial tyranny on health care or gay marriage, remained in step with the social agenda of his party. He went on to refer to religious liberty as “America’s most fundamental right” — a sentiment that just as easily applies to the second amendment among avid conservatives when they are otherwise preoccupied with the imaginary loss of their personal arsenals. GOP contenders know that their base is all about God and guns, in no particular order — a combustible cocktail spiked with the potent elixir of irrational fear.
Even the high court isn’t immune to the vicissitudes of mutable gumption. Justice Scalia, disagreeing strongly with the marriage equality ruling, got in on the act of under-cutting the court’s constitutional authority, tagging his fellow adjudicators as:
Constitutional interpretation and application appears to be a situational thing among the sour grapes wing of the GOP, and yet in spite of that — the record of the Roberts Court is surprisingly not quite so bad after all. (Save Scalia, of course – that dude’s pure applesauce)