Saturday, June 30, 2012

Republican Pressuring of Justices is.... Par for the Course?

Ah, memories....
Novelist John Grisham could hardly spin a more provocative fiction: The Republican Party and its surrogates mount an aggressive campaign to intimidate the chief justice of the United States, implying ruin and ridicule for his failure to vote in a pivotal case according to the political party's wishes.

If only it were fiction.

The justice is, of course, John Roberts, and the case involves the Affordable Care Act (ACA), aka "Obamacare," which would be affordable only if the court upheld the individual mandate requiring all Americans to buy health insurance.

The right's narrative goes as follows: If the justices don't side with the Obama administration, they will be viewed as brilliant and nonpartisan. If the reverse occurs, why then, the justices are partisan, judicial activists who have delegitimized the court.

Right-wing radio personality, Bryan Fischer laid it out for Roberts, whose vote proved decisive: Roberts "is going down in history as the justice that shredded the Constitution and turned it into a worthless piece of parchment," adding that Roberts acted "more like a demolitions expert" than as an "umpire". Rep. Mike Pence (R-IN) compared the health care ruling to Sept. 11. Breitbart News editor Ben Shapiro sniffed that Roberts "was the worst part of the Bush legacy". Of course, had the Roberts court struck down health-care reform by a partisan 5-4 vote, then the chief justice's performance of his role as a conservative arbiter who puts law ahead of politics would be championed as an unqualified success.

Lest there be any lingering confusion, permit me: You didn't vote our way, Justice Roberts, so you will go down in history as having abrogated your duty; your reputation will be destroyed; and the country will hold you accountable not only for upholding legal concepts that were once embraced but now rejected by conservatives, but also for setting back the Republican political agenda.

In so many words.

Wait, the Republican political agenda? Yes, according to many on the right, including David Frum, by failing to roll back Obamacare, Republicans "will have to fight inch by bloody inch for changes they could have had for the asking in 2010". Legal scholars on the left insist otherwise, noting that lawyers for the defendants were explicit in denying any interest in judicial activism and simply asked the court to respect the democratic process.

I leave this debate to others more worthy, but the idea that decisions must be popular and/or bipartisan is silly on its face. Just because something is uppopular doesn't make it "wrong" or legally incorrect. And, difficult as this is to accept in our Twitter culture, Supreme Court justices needn't be popular.

Nevertheless, the right is pushing many such non-legal arguments, including that the court should have overturned a "constitutional" legislative act. Even the Republican notables like Rand Paul advanced this argument as recently as yesterday, arguing "Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so", although the ACA has, in fact, been held constitutional.

One could easily forget that Republican notables like John Cornyn (R-TX) and Chuck Grassley (R-IA) once argued, respectively, "Unelected and serving with lifetime tenure, and substituting their view for the views of the people’s…the people and their elected representatives. That’s not the way our democracy is supposed to work" and "Judges are not policymakers. That’s what we are in the Congress of the United States. Judges are called on to decide the facts and to apply the law".

This not-so-stealth campaign to influence the Supreme Court is obnoxious, if not unethical. It is also factually challenged. Upholding a law, even a controversial law, is not be unprecedented or extraordinary, as any first-year law student could tell you.

It happens. Yet criticizing the Supreme Court is a consistent refrain from the political right, which has spent many decades attacking judges and courts as activist and partisan. In his 2008 campaign presumed Republican presidential nominee Mitt Romney asserted, "The Bill of Rights are under constant assault from activist judges". Rep. Steve King (R-IA) speaks of "the judicial activism that’s begun to break down this civilization, and this culture".

Publicly chastising the court -- and now taunting Roberts specifically -- seems to have two purposes. One is to get under Roberts' skin in hopes that he'll rule the "correct" if not necessarily "legally correct" way. Two is to lay the groundwork for declaring the court illegitimate if Roberts again upholds legislation to which the Republican Party objects.

Either way, it's politics at its filthiest.

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