Great Constitutional Charade

By Wayne O’Leary

It’s obvious by now that the US Supreme Court is operating under false pretenses and is not what it purports to be — that is, the nation’s great independent arbiter, its source of disinterested, Solomon-like wisdom. The Court is not, if it ever was, an impartial body somberly placing constitutional questions on the blind scales of judicial review and reaching objective decisions after thoughtful and open-minded immersion in our founding document.

Rather, it’s become, especially since Bush v. Gore in 2000, a completely partisan body that makes its majority decisions beforehand on the basis of party and ideology, then goes about finding legal rationales to justify its prior conclusions. In fact, the Court is not really a court at all; it’s a highly politicized, quasi-representative body (albeit unelected) no more sanctified than Congress or the executive.

There is presently an operative Mexican standoff in political Washington, with Democrats controlling two of the four real branches of government (the White House and the Senate) and Republicans controlling the other two (the House of Representatives and the Supreme Court). President Obama’s options are strictly limited in the existing environment; any truly progressive legislation he might somehow force through the congressional grinder will ultimately be neutralized by the Republican high court.

Some will point to the favorable decision on the Affordable Care Act’s constitutionality as proof to the contrary. After all, Chief Justice John Roberts did side with the Court’s “liberals” (actually, middle-of-the-roaders) to uphold the controversial individual mandate and preserve the bulk of the new healthcare law. But Democrats and progressives should refrain from doing a celebratory dance in the end zone; the same 5-4 decision struck down the section of the law — perhaps its most important section — that was key to moving the country toward universal coverage by expanding Medicaid eligibility.

Here’s the irony: Although his right-wing critics and erstwhile allies, on and off the Court, don’t appreciate the subtlety, Roberts voted to save the least progressive part of Obamacare (the mandate that guarantees millions of captive customers for America’s corporate health insurers), while at the same time orchestrating the potential demise of its most progressive feature, the inclusion of additional millions of uninsured low-income Americans in a government-run insurance program. It’s hard to believe this was entirely unintentional.

One way to look at Roberts’ decision is that rather than throwing out the entire law (at its core, remember, a Republican-designed piece of legislation), he artfully chose to reward the Court majority’s most prized constituency, corporate America, by institutionalizing a private healthcare system for the non-poor working population. Simultaneously, by allowing states to opt out of the previously mandatory Medicaid expansion, opposed as coercive by red-state conservatives, he effectively undercut the Obama administration’s attempt to grow a parallel public-insurance program for the poor and near-poor.

The upshot: a total of 11.5 million people too impoverished to buy health coverage under Obama’s individual mandate and also unable to qualify for health-exchange subsidies (because it was assumed they would be covered by an expanded Medicaid) may fall by through the cracks. Their fate is now in the hands of their home-state governors and legislators, including the fanatical and extremist right-wing class of 2010 that brought suit against Obamacare’s provisions in the first place.

Roberts’ surprising vote can, therefore, be viewed as entirely consistent with his and the GOP majority’s prior partisan opinions, as expressed in Citizens United and subsequent pro-corporate conservative decisions. It’s possible, of course, that Roberts may also have been motivated by a desire to defuse charges of excessive high-court partisanship, or (more likely) by the determination to use his taxing-power rationale on behalf of Obamacare as a sophisticated end run around the Constitution’s “commerce clause” (Art. I, sec. 8), thereby weakening it as a future justification for government regulation of the economy.

Regardless of the chief justice’s motivation, one anomalous decision does not make up for years of Pavlovian right-wing predictability. If Roberts is, as some think, concerned about the Supreme Court’s growing reputation for politically partisan decisions, he has a lot to be concerned about and a lot for which to answer. Since he assumed office in 2005, decision after decision of the Court has blatantly favored corporations, the religious right, the gun lobby, and the voter-suppression and anti-union movements — all constituent parts of the Republican party.

Those who think the “liberal” decision upholding the Affordable Care Act presages a kinder, gentler high court need to think again. The narrowness of the Roberts-formulated opinion, its strict-construction reliance on the limited constitutional taxing power of Congress, was in keeping with the conservative legal agenda of the secretive Federalist Society with which the chief justice is thought to be affiliated. It’s an agenda dedicated to restricting the much broader authority implied under the commerce clause, which gives Congress the power “to regulate Commerce with foreign nations and among the several States.”

From the New Deal onward, that phrase has been the basis for extensive federal intervention in the national economy. The New Deal itself, its host of regulatory laws and alphabet agencies, was legitimized by a liberal interpretation of the commerce clause in a range of Supreme Court cases adjudicated after 1937. Prior to that year, mainly in 1935-36, large portions of the New Deal, including the National Industrial Recovery Act and the Agricultural Adjustment Act, had been struck down by a reactionary, pro-business Court appointed by Republican presidents.

As in our time, a politically motivated cadre of right-wing justices found justification (in a bizarre interpretation of the doctrine of “due process” under the 5th and 14th Amendments) for their preconceived notions of the proper role of government; it was, in their eyes, a very limited role, which, for all practical purposes, denied any political response to the problems of the Great Depression. In the end, the country was saved by Father Time and the Zeitgeist. Death and resignation allowed FDR to appoint seven liberal justices between 1937 and 1941, enough to validate his program of recovery.

We stand at a similar crossroads today. Will Father Time step up again? And will the voters, as they did in 1936, reinstall a progressive government able to respond affirmatively to changing dynamics at the Court? Those are the fundamental questions of 2012.

Wayne O’Leary is a writer in Orono, Maine, specializing in political economy. He is the author of two prizewinning books.

From The Progressive Populist, October 1, 2012

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