Thursday, June 28, 2012

Supreme Court and the 2012 Election

The Supreme Court will play a part in determining the outcome of the 2012 national elections; yet it is not yet clear how resounding the court’s impact will be.
by Charlie Leck

As I write a draft of this blog, it is approaching 7:00 A.M. [28 June 2012] on the east coast. In another few hours, at precisely at 10:00 A.M. (EDT), I am quite sure a bell will ring at the Supreme Court, signifying a decision is forthcoming. My prediction is that today is the day for the decision about the health care law that was established a couple of years ago. The rest of the day, then, will be filled with analysis about the impact of the court’s decision. How will this decision effect health care for the uninsured (mainly lower income people)? How will it impact the coming election?

I don’t need to wait. I know already that the 2012 presidential election is going to be powerfully influenced by the Supreme Court of the United States and the decisions it has made over the last three years. Never has there been a court that has reached so deeply into American politics! Never!

And never has a court shown so blatantly its political leanings and disposition.

In its edition of this morning, the Washington Post has called for the resignation of Justice Scalia, exclaiming that he is far too partisan to be on the court – that his bias too deeply impacts his decisions.

“Justice Scalia is nothing if not intelligent; his unpredictable approach to certain issues, especially free speech and criminal law, mark him as a less-than-doctrinaire conservative. And surely even the court’s proceedings can use a dash of humor every now and then.
“But his lapses of judicial temperament — bashing “a law-profession culture, that has largely signed on to the so-called homosexual agenda” in a written dissent, or offering views on this and that in sarcastic public speeches — detract from the dignity of his office. They endanger not only his jurisprudential legacy but the legitimacy of the high court.”

I could also send you this morning to opinion columns in the same newspaper by E.J. Dionne and/or Dana Milbank that offer exceptional arguments about Justice Scalia’s dangerous impartiality.

“Scalia’s tart tongue has been a fixture on the bench for years, but as the justices venture this year into highly political areas such as health-care reform and immigration, the divisive and pugilistic style of the senior associate justice is very much defining the public image of the Roberts Court.” [from Dana Milbank’s column]

I’ve written here ad nausea about the court’s Citizens United decision and how it has changed the face of spending in U.S. elections. I won’t go there again. Instead, let me amble and ramble about, thinking of how powerful some U.S. Supreme Courts can be.

The power of the Supreme Court is immense. We have seen that when it was too liberal and now we are seeing it when it is too conservative. When it is more balanced, less political and more impartially contemplative, it functions more judiciously and effectively; and, even though it is still powerful, its power seems more contained and non-intrusive in political matters. When it is politically imbalanced it seems not to be the final arbiter of constitutional questions, but the chief creator of political direction (whether right or left).

Rather, what it shows is that the United States periodically redefines the role of the federal government in society, in a process that is both political and legal — and, sometimes, more revolutionary than evolutionary. In that sense, we do have a living Constitution...

“…In the 1930s, expanding federal power was innovative, promising. By blessing it, the court aligned itself with the wave of the future, in this country and globally. Ditto for the 1960s. Much of the legislation that resulted — from Social Security to the Voting Rights Act — was indeed progressive.

“Today, however, there is nothing new about federal intervention — and much evidence from the past 70 years that big programs produce inefficiencies and unintended consequences.

“The post-New Deal consensus about the scope of federal power has broken down amid national, and global, concern over the welfare state’s cost and intrusiveness — a sea change of which the tea party is but one manifestation. Obamacare itself, which has consistently polled badly, fueled that movement.

Now mind you, the swing is distinct in the current court, but it is only by a single vote. If there were one more more liberal justice in place of one of the conservatives, what we would have would be a remarkably balanced Supreme Court with a sensible and contemplative swing vote that could, depending of the issue, launch the court in one direction or another.

It does not take a historical genius to recognize that the country, and its politics most especially, has fared better in those times when the court was thusly balanced.

Such a swing back toward a more balanced court does not seem possible even should President Obama win reelection. The conservative members of the bench are young and vigorous and committed to remaining. On the other hand, with an aging couple of members on the more liberal side of the court, who almost certainly will need to be replaced in the next four years, an Obama defeat could see the nation supervised by a right-leaning court for at least a generation. Ruth Bader Ginsburg will turn 80 within the half-year. The moderate centrist justice Anthony Kennedy is 76 and many have hinted that he is considering retirement.

It is one more reason why an Obama victory is extremely important. Should a right-leaning President move into the White House then the country is going to be agonizingly different for many, many years even if he is only a one-termer; for he will, in that time, appoint at least two more justices to the court and they will both be of a conservative persuasion.

Oh, my!

Okay, I’m not a chicken. The Supreme Court, by a 5-4 vote, will strike the Obama health care legislation completely off the books – not just parts of it, mind you, but the entire bill will be found to be unconstitutional. The impact of this on the election will be immense. Angry Democrats will come out of hibernation and a very, very hot race will be on.

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